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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22-12041
____________________

BRANDON FULTON,
Plaintiff-Appellant,
versus
FULTON COUNTY BOARD OF COMMISSIONERS,

Defendant-Appellee,

PAUL L. HOWARD, JR.,

Esq.; in his individual capacity, et al.,

Defendants.

____________________
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2 Opinion of the Court 22-12041

Appeal from the United States District Court

for the Northern District of Georgia
D.C. Docket No. 1:20-cv-01936-SCJ
____________________

Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and ABUDU,

Circuit Judges.
ROSENBAUM, Circuit Judge:
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 reme-
dies: “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, de-
pending 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 prom-
ise is not illusory. A person can bring a case directly invoking either
constitutional remedy.
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22-12041 Opinion of the Court 3

This case involves the “just compensation” remedy. Bran-

don Fulton alleges that Fulton County took his horses without jus-
tification and without paying for them. He asserts that the Fifth
Amendment demands the County pay him “just compensation”
for the taking of his property. See U.S. CONST. amend. V. So he
seeks to sue to recover what he says the County owes him under
the Constitution.
The problem: Congress has not provided him with a cause
of action to secure “just compensation” in federal court. Fulton
initially tried to bring an action under 42 U.S.C. § 1983. That stat-
ute allows suits against municipalities who, through official policies
or customs, violate the Constitution. See Monell v. Dep’t of Soc.
Servs. of N.Y.C., 436 U.S. 658, 694 (1978). But because Fulton is un-
able to plead an official policy or custom under which the County
took his horses, he can’t proceed under that statute—even though
the Takings Clause doesn’t require a plaintiff to clear that bar to be
entitled to “just compensation.”
So Fulton seeks a plan B. He asks to amend his complaint to
sue directly under the Takings Clause itself.
Whether the Takings Clause contains a cause of action that
allows a litigant to recover “just compensation” in federal court
presents an open question. In DeVillier v. Texas, the Supreme Court
confirmed that its “precedents do not cleanly answer the ques-
tion . . . .” 601 U.S. 285, 292 (2024). Yet the Court also confirmed
that “the absence of a case relying on the Takings Clause for a cause
of action does not by itself prove there is no cause of action. It
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4 Opinion of the Court 22-12041

demonstrates only that constitutional concerns do not arise when

property owners have other ways to seek just compensation.” Id.
Now, after careful review of the text, structure, and history of the
Constitution, we conclude that the Takings Clause does directly
authorize suit.
The Dissent responds by saying we are “creat[ing] a new
right of action” and leaving “constitutional wreckage in the wake.”
Diss. Op. at 35. 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 compen-
sation” into nothing more than a Tantalus-type taunt. Most re-
spectfully, we don’t think that’s “judicial humility,” see id. at 35; we
think it’s judicial abdication. We have a duty to apply the Consti-
tution as written. So we respectfully decline to read out of the Con-
stitution the relief it expressly promises for taken property.
The Framers of the Fifth and Fourteenth Amendments pro-
vided a real remedy in “just compensation” for government tak-
ings. They guaranteed the ability to recover “just compensation”
directly under the Constitution. So we hold that Fulton’s proposed
amendment to his complaint is not futile.
I. BACKGROUND
This case comes to us on appeal from a denial of a motion
for leave to amend the complaint. So for purposes of our analysis,
we accept as true the facts pled in the proposed amended complaint
and construe them in the light most favorable to the plaintiff.
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22-12041 Opinion of the Court 5

Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns, Inc., 376
F.3d 1065, 1077 (11th Cir. 2004).
On April 22, 2017, Fulton County Animal Services arrested
Brandon Fulton for felony cruelty to animals and seized seven
horses in his possession. Nearly a year later, on April 5, 2018, Geor-
gia dismissed the criminal charges against Fulton. But Fulton
County didn’t return the horses or otherwise compensate Fulton
for the loss of his property.
So on May 5, 2020, Fulton brought this federal suit to re-
cover his property. He initially sued the Fulton County Board of
Commissioners under 42 U.S.C. § 1983, alleging that the seizure
was an unconstitutional taking in violation of the Fifth Amend-
ment. 1
The Board of Commissioners moved to dismiss his claim. It
argued that (1) it isn’t an entity capable of being sued; (2) Fulton
failed to state a claim under § 1983; and (3) the statute of limitations
bars Fulton’s claim. Fulton opposed the Board of Commissioners’
motion. He also moved to amend his complaint to substitute the
County as defendant in place of the Board of Commissioners and

1 Fulton also sued Paul L. Howard, Jr., the former District Attorney for the
County, and Rebecca Guinn, the CEO for the organization that manages the
Fulton County Animal Services, in their individual capacities under 42 U.S.C.
§ 1983 for violating his procedural due process rights. But Fulton ultimately
withdrew the claim against Guinn. And the district court dismissed Fulton’s
claim against Howard. Fulton doesn’t appeal that ruling.
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6 Opinion of the Court 22-12041

to add an alternative claim against the County directly under the

Fifth Amendment.
The district court denied Fulton’s motion to amend his com-
plaint and dismissed his claim against the Board of Commissioners
without prejudice. It determined that Fulton’s proposed alterna-
tive claim would fail because plaintiffs who want to bring constitu-
tional takings claims against a municipality must sue under § 1983
and cannot sue directly under the Takings Clause. And in the dis-
trict court’s view, Fulton couldn’t maintain his § 1983 claim against
the Board of Commissioners or against the County because he
failed to allege that some official municipal policy or practice
caused the constitutional violation, as Monell v. Department of Social
Services of New York City, requires. 436 U.S. at 694. Since any
amendment would be futile, the district court reasoned, it declined
to address whether Fulton’s suit was timely.
Fulton appealed this order.
After we heard oral argument in this case, the Supreme
Court decided DeVillier, which, as we’ve noted, considered whether
to address whether the Takings Clause creates a direct cause of ac-
tion. 601 U.S. at 292. The Supreme Court concluded that that case
did not require it to do so. Id. And faced with deciding a novel
question without the Court’s guidance, we invited the Institute for
Justice and the cohort of Professor James W. Ely, Jr., Professor Julia
D. Mahoney, and The Buckeye Institute, each group having briefed
the issue in DeVillier, to brief several related questions here. We
also asked the Solicitor General of Georgia to brief the same
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22-12041 Opinion of the Court 7

questions. We thank them all for their excellent briefs in keeping

with the highest tradition of the legal profession.
II. STANDARD OF REVIEW

We review for abuse of discretion the district court’s denial

of a motion for leave to amend a complaint. Spanish Broad. Sys.,
376 F.3d at 1077. But we review de novo the district court’s legal
conclusion that amendment would be futile. SFM Holdings, Ltd. v.
Banc of Am. Sec., LLC, 600 F.3d 1334, 1336 (11th Cir. 2010). Amend-
ment is futile if the amended complaint still would be subject to
dismissal. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th
Cir. 2004).
III. DISCUSSION
Fulton attempts to amend his complaint to bring a damages
action directly under the Takings Clause. That requires us to con-
sider whether the Takings Clause provides a cause of action to re-
cover “just compensation.” Recently, the Supreme Court declined
to answer that question in DeVillier. But we cannot take that tack
because we conclude that Fulton cannot amend his complaint to
bring a state-law action and that any theoretical Takings Clause ac-
tion would be timely. So we must confront the question head on.
To do so, we consider the text and history of the Fifth and
Fourteenth Amendments. Based on our review, we hold that the
Takings Clause contains a direct cause of action against local gov-
ernments. As a result, Fulton’s proposed amendment to his com-
plaint would not be futile. So we vacate the district court’s order
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8 Opinion of the Court 22-12041

denying the motion to amend, and we remand for further proceed-

ings consistent with this opinion.
A. The district court would have had jurisdiction over
Fulton’s Takings Clause claim.

We begin with a clarification. In his opening brief, Fulton

asserts that amendment wouldn’t be futile because the district
court would have federal-question jurisdiction over his proposed
claim. But the district court never suggested that it might lack ju-
risdiction over a Takings Clause claim. Instead, the district court
held that amendment would be futile because the Takings Clause
doesn’t provide a cause of action against municipalities. We briefly
explain the difference.
Subject-matter jurisdiction is “the courts’ statutory or con-
stitutional power to adjudicate [a] case.” Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 89 (1998) (emphasis omitted) (citing 5A
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1350). We dismiss a claim for lack of subject-
matter jurisdiction only if the claim (1) “clearly appears to be im-
material and made solely for the purpose of obtaining jurisdiction;”
or (2) “is wholly insubstantial and frivolous.” Blue Cross & Blue
Shield of Ala. v. Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998) (quoting
Bell v. Hood, 327 U.S. 678, 682–83 (1946)).
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22-12041 Opinion of the Court 9

For a claim based directly under the Constitution, 28 U.S.C.

§ 1331 provides the statutory basis for jurisdiction.2 Under this law,
federal courts enjoy jurisdiction over “all cases aris[ing] under the
Constitution, laws, or treaties of the United States.” Bush v. Lucas,
462 U.S. 367, 374 (1983) (quoting 28 U.S.C. § 1331 (1976)) (internal
quotation marks omitted) (bracket in original). Here, Fulton’s pro-
posed amended claim alleges a violation of the Takings Clause un-
der the Fifth and Fourteenth Amendments. So as long as his claim
wouldn’t have been “wholly insubstantial and frivolous,” the dis-
trict court would have had federal-question jurisdiction over this
case.
The existence of a cause of action raises a distinct issue. See
Resnick v. KrunchCash, LLC, 34 F.4th 1028, 1034–35 (11th Cir. 2022).
A cause of action exists when “a particular plaintiff is a member of
the class of litigants that may, as a matter of law, appropriately in-
voke the power of the court.” Davis v. Passman, 442 U.S. 228, 239
n.18 (1979). Whether a plaintiff has alleged a cause of action gen-
erally presents a merits question. See Duke Power Co. v. Carolina
Env’t Study Grp., Inc., 438 U.S. 59, 70 (1978).

2 Fulton also claims that the district court would have had jurisdiction under
28 U.S.C. § 1343(a)(3). But as the Board of Commissioners notes, he didn’t
plead this basis for jurisdiction in his complaint, so he can’t rely on 28 U.S.C.
§ 1343(a)(3). See Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). And
because his claim “depends . . . upon construction or application of the Con-
stitution,” 28 U.S.C. § 1331 is the correct jurisdictional hook. Duke Power Co.
v. Carolina Env’t Study Grp., Inc., 438 U.S. 59, 70 (1978) (internal quotation
marks and citation omitted).
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10 Opinion of the Court 22-12041

As an analogy, if court were an event like a play or a musical,

a cause of action would be a ticket to the show. Jurisdiction, on the
other hand, would be the right to put on the show. No ticket, no
entry. But the show can still go on for other audience members,
provided the venue finds those others have a valid ticket.
Here, Fulton has attempted to state a cause of action directly
under the Takings Clause. As we’ve noted, whether the Takings
Clause creates a cause of action to obtain “just compensation”
raises an open question. DeVillier, 601 U.S. at 292. So Fulton’s al-
leged cause of action isn’t “patently without merit.” McGinnis v.
Ingram Equip. Co., 918 F.2d 1491, 1494 (11th Cir. 1990) (en banc) (ci-
tation omitted). And the district court had jurisdiction to evaluate
whether the Takings Clause gave him a cause of action. As a result,
we must independently evaluate that merits question. This case is
about whether Fulton has a ticket, not whether the show can go on
at all.
B. Georgia law bars Fulton from bringing a state-law
action.

Before we get to the central question of the case, we must

address whether we need to answer it at all. We might avoid the
issue if we can remand the case to allow Fulton to press an action
under state law to recover the value of his horses.
That is essentially what the Supreme Court did in DeVillier.
Indeed, the DeVillier Court found it “imprudent to decide” whether
the Takings Clause contains a cause of action. DeVillier, 601 U.S. at
292. Instead, it remanded the case for the plaintiffs there to amend
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22-12041 Opinion of the Court 11

their complaints to “pursue their claims under the Takings Clause

through the cause of action available under Texas law.” Id. at 293.
And since Georgia permits inverse-condemnation actions to re-
cover the value of uncompensated takings, see Diversified Holdings,
LLP v. City of Suwanee, 807 S.E.2d 876, 884 (Ga. 2017), Fulton argues
for the first time after DeVillier in supplemental briefing that we
could remand this case to allow him to bring a claim under a Geor-
gia vehicle.
But we think Georgia law now bars any such claim. In Geor-
gia, actions to recover personal property have a four-year statute of
limitations from when the claim accrues. GA. CODE ANN. §§ 9-3-
31 to 9-3-32 (2025). Here, Georgia seized Fulton’s horses on April
22, 2017, for a criminal investigation. On April 5, 2018, it dropped
the charges. And Georgia law may have required law enforcement
to have returned Fulton’s horses by May 5, 2018. See id. § 17-5-
54(c)(2) (giving 30 days following a guilty verdict to return property
taken as part of an investigation). So even assuming Fulton’s state-
law claim did not accrue until May 5, 2018, it wouldn’t be timely
now, over seven years later, if it were the first time Fulton raised
the issue.
That said, Fulton did file a federal complaint arising from
the same set of facts on May 5, 2020, within the four-year window.
And any claim added to his complaint would relate back to its orig-
inal filing date, as though he had brought it on that date, May 5,
2020. See Est. of West v. Smith, 9 F.4th 1361, 1366 n.3 (11th Cir. 2021)
(looking to the state law providing the statute of limitations to
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12 Opinion of the Court 22-12041

determine whether an amendment to the complaint will relate

back); GA. CODE ANN. § 9-11-15(c) (2025) (“Whenever the claim or
defense asserted in the amended pleading arises out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in
the original pleading, the amendment relates back to the date of
the original pleading.”) So a state-law claim wouldn’t be barred by
the four-year statute of limitations.
The problem, though, is Georgia has a special rule for suits
against counties. It requires that “[a]ll claims against coun-
ties . . . be presented within 12 months after they accrue or become
payable or the same are barred . . . .” Id. § 36-11-1. And the record
contains no evidence showing Fulton satisfied this requirement. So
this provision bars Fulton’s state-law claim.
For this reason, we can’t avoid the question of whether Ful-
ton can proceed directly under the federal Constitution.
C. A direct Takings Clause action would not be time-
barred.

So we turn next to whether an action under the Takings

Clause could move forward. But we still might not need to address
the existence of that theoretical cause of action if it would also be
time-barred. Indeed, we can’t acknowledge Fulton’s ticket—even
if it’s valid—if it’s marked expired. For that reason, we first con-
sider the appropriate statute of limitations for a claim directly un-
der the Takings Clause. We conclude that, in Georgia, the statute
of limitations would be four years. As a result, Fulton’s claim
would not be time-barred.
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22-12041 Opinion of the Court 13

When a federal claim lacks an express statute of limitations,

we look to “the forum state’s limitations period applicable to the
state cause of action that bears the closest substantive resemblance
to the federal cause of action.” Vigman v. Cmty. Nat’l Bank & Tr. Co.,
635 F.2d 455, 459 (5th Cir. Jan. 1981) (citations omitted). 3 Here, two
potentially relevant limitations periods exist. 4
First, as we’ve mentioned, Georgia law requires actions to
recover the value of personal property to be filed within four years.
GA. CODE ANN. §§ 9-3-31 to 9-3-32 (2025). Similarly, inverse-con-
demnation actions for recovering the value of real property also
have a four-year limitations period. See id. § 9-3-30.
But second, Georgia allows potential litigants only two years
to file personal-injury actions. Id. § 9-3-33. And we apply this lim-
itation period to § 1983 actions. See Hillcrest Prop., LLC v. Pasco
County, 754 F.3d 1279, 1281 (11th Cir. 2014) (“Section 1983 claims

3 “[T]he decisions of the United States Court of Appeals for the Fifth Circuit
(the ‘former Fifth’ or the ‘old Fifth’), as that court existed on September 30,
1981, handed down by that court prior to the close of business on that date,
[are] binding as precedent in the Eleventh Circuit . . . .” Bonner v. City of Prich-
ard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
4Not relevant is the special provision for counties requiring claims to be pre-
sented within 12 months. See GA. CODE ANN. § 36-11-1 (2025). That’s so be-
cause it’s not a statute of limitations. Rather, it’s a state procedural require-
ment that a plaintiff formally notify the county before suit. See Dates v. City of
Atlanta, 903 S.E.2d 289, 292 (Ga. Ct. App. 2024). The legalistic Latin name for
this type of requirement is ante litem notice. See id.
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14 Opinion of the Court 22-12041

are subject to a forum state’s statute of limitations for personal in-

jury claims.” (citation omitted)).
We conclude that the limitations period for the recovery of
personal property—four years—governs. That’s so because it’s the
most substantively similar action to Fulton’s effort to pursue his
federal just-compensation right. So if Fulton were able to bring a
state-law claim grounded in the Takings Clause, the four-year pe-
riod for the recovery of personal property is the one that would
apply. See GA. CODE ANN. §§ 9-3-31 to 9-3-32 (2025); Rowland v.
Clarke Cnty. Schl. Dist., 532 S.E.2d 91, 93 (Ga. 2000) (applying a four-
year limitations period for the recovery of personal property from
a county school district).
True, as we’ve mentioned, § 1983 cases, which include Tak-
ings Clause claims, are subject to the personal-injury statute of lim-
itations. See Hillcrest Prop., LLC, 754 F.3d at 1281. But that’s so be-
cause § 1983 is a “general remedy for injuries to personal rights.”
See Wilson v. Garcia, 471 U.S. 261, 278 (1985). The statute “encom-
passes a broad range of potential tort analogies, from injuries to
property to infringements of individual liberty.” Id. at 277. So the
Supreme Court thought it appropriate to apply a statute of limita-
tions that captured the “unifying theme” of the statute—even if
other torts might also be analogues to more specific rights that
§ 1983 protects. 5 Id.

5Because Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), “create[d] a remedy against federal officers, acting under color
of federal law, that was analogous to the [§] 1983 action against state
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22-12041 Opinion of the Court 15

But we are determining the statute of limitations that would

apply to a unique cause of action that, if it exists, arises directly
under the Takings Clause. And the right to “just compensation” is
most analogous to recovery for inverse condemnation rather than
personal injury. So we apply Georgia’s statute of limitations that
governs inverse-condemnation actions.
When we do that, we conclude that Fulton’s action directly
under the Takings Clause would be timely. Law enforcement
seized Fulton’s horses in 2017, the charges were dropped in 2018,
and he brought his action in 2020—within four years of the rele-
vant facts. So the statute of limitations wouldn’t bar Fulton’s ac-
tion.
Because a theoretical action directly under the Takings
Clause would be timely, we must determine whether such a cause
of action in fact exists.

officials . . . . courts generally apply § 1983 law to Bivens cases.” Kelly v. Serna,
87 F.3d 1235, 1238 (11th Cir. 1996) (quoting Abella v. Rubino, 63 F.3d 1063, 1065
(11th Cir. 1995)). So Bivens actions brought in Georgia similarly use the state’s
two-year personal-injury statute of limitations. Id. But as we explain in Part
III.D.5, infra, a cause of action directly under the Takings Clause would be
completely independent of Bivens and unrelated to § 1983. So we don’t see
Bivens as a reason to apply the two-year statute of limitations to a direct just-
compensation claim.
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16 Opinion of the Court 22-12041

D. The Takings Clause creates a direct cause of action

for unconstitutional takings by local governments.

Finally, we get to the main event (it may not be Hamilton, but
we do have the two other authors of the Federalist Papers a little
later). We must confront whether a litigant may sue a county in
Georgia—a political subdivision of the state, see GA. CODE ANN.
§ 25-3-4 (2025)—directly under the Takings Clause to obtain “just
compensation” for a taking. After reviewing the text, history, and
structure of the Constitution, we hold that a litigant can.
1. The text of the Fifth Amendment and the structure
of the Constitution show that the Takings Clause
contains a direct cause of action.
The Takings Clause provides that no “private property
[shall] be taken for public use, without just compensation.” U.S.
CONST. amend. V. Three major points about this text and how it
fits into the Constitution’s overall structure stand out: (1) the Tak-
ings Clause guarantees “just compensation”—a monetary rem-
edy—when the government takes private property; (2) the Takings
Clause is “self-executing,” Knick v. Township of Scott, 588 U.S. 180,
194 (2019); and (3) the Takings Clause is one of only two constitu-
tional guarantees that provides its own remedy. Together, these
three points lead to the conclusion that the Constitution automat-
ically provides Americans with the federal right to sue for “just
compensation.” In this subsection, we explain each point and why
it supports that conclusion.
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22-12041 Opinion of the Court 17

We begin with the meaning of “just compensation.” Dic-

tionaries during the Founding period and in the early years of our
Republic defined “just” to mean “[u]pright; incorrupt; equitable in
the distribution of justice”—in other words, fair. SAMUEL JOHNSON,
Just. adj., A DICTIONARY OF THE ENGLISH LANGUAGE (1773),
https://perma.cc/W4M8-T5C2 (emphasis added); see also NOAH
WEBSTER, Just, adjective, AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1828), https://perma.cc/PD4F-PHYQ (defining “just,”
in relevant part, to mean “[e]quitable; due; merited; as a just rec-
ompense or reward”). And they defined “compensation” as
“[r]ecompence; something equivalent; amends”—that is, payment
for what’s been taken. SAMUEL JOHNSON, Compensa’tion. n.s, A
DICTIONARY OF THE ENGLISH LANGUAGE (1773),
https://perma.cc/7RVU-GDKK; see also NOAH WEBSTER, Compen-
sation, noun, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE
(1828), https://perma.cc/C3PP-EEBC (“That which is given or re-
ceived as an equivalent for services, debt, want, loss, or suffering;
amends; remuneration; recompense.”). Together, then, the plain
meaning of the term “just compensation” refers to fair payment.
So it’s unsurprising that the Supreme Court has said that
“just compensation” is monetary relief. City of Monterey v. Del
Monte Dunes at Monterey, Ltd., 526 U.S. 687, 710 (1999). To deter-
mine “just compensation,” we ask “what has the owner lost”? See
id. (quoting Bos. Chamber of Com. v. Boston, 217 U.S. 189, 195 (1910)).
We don’t consider “what . . . the taker gained” or seek to put the
owner in an equitable position with the taker. See id. Instead, we
seek to give the owner only the value of what the government
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18 Opinion of the Court 22-12041

took. See id. In essence, then, “just compensation is, like ordinary
money damages, a compensatory remedy.” Id. So in legalistic
terms, “just compensation” is “legal relief.” Id. at 710–11.
And to get any form of “legal relief ” in the federal court-
room, a litigant must have a cause of action. See id.; Davis, 442 U.S.
at 239 n.18. So with an express constitutional right to receive “just
compensation” as a form of legal relief, we would expect a guaran-
teed cause of action to sue to recover that relief. 6 See United States
v. Lee, 106 U.S. 196, 220 (1882) (“It cannot be denied that [the Tak-
ings Clause was] intended to be enforced by the judiciary as one of

6 Citing the work of Professor Jud Campbell, the Dissent argues that a consti-
tutional right to a legal remedy does not necessarily supply a cause of action
to get that relief. See Diss. Op. at 7 (citing Jud Campbell, Determining Rights,
138 Harv. L. Rev. 921, 923, 944, 974 n.370, 981 (2025); and then citing William
Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth
Amendment, 76 Stan. L. Rev. 1185, 1191 (2024)). But Campbell has argued that
rights may be either legally determinate, and therefore judicially enforceable,
or indeterminate. See, e.g., Campbell, Determining Rights, supra, at 923 n.7
(“Many Founders accepted the judicial enforceability of legally determinate
fundamental rights, whether enumerated or not.”); cf. id. at 931 (“Although
natural law was ‘law’ in an abstract sense, it generally was not ‘law’ in a judi-
cially enforceable sense because it lacked determinate content.”). And he has
been clear that, under his theory, the right to “just compensation” is a deter-
minate right, so it follows that it is judicially enforceable. See id. at 974 n.370
(describing “the right against uncompensated takings” as a “legally determi-
nate right[]”); Baude, Campbell & Sachs, General Law and the Fourteenth Amend-
ment, supra, at 1236 (recognizing “the right to compensation for takings” as a
“centerpiece[]” of both the Bill of Rights and the privileges or immunities of
citizenship). As a result, an adherent to Campbell’s views should remain com-
fortable with the conclusion that the Constitution supplies a direct cause of
action for judicial enforcement of the Takings Clause.
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22-12041 Opinion of the Court 19

the departments of the government established by th[e] constitu-

tion.”).
The Supreme Court has also told us that the Takings
Clause’s right to “just compensation” is “self-executing.” See Knick,
588 U.S. at 194. That means that a person is automatically entitled
to this relief as soon as they suffer a taking. See id. at 190. Congress
need not recognize their injury nor their right to a remedy. See id.
(discussing Jacobs v. United States, 290 U.S. 13 (1933)). And based on
the text of the Clause, that makes sense. By its terms, the Clause
reflects that as soon as the government commits a “taking, com-
pensation must be awarded” and the property owner “has already
suffered [a constitutional violation] at the time of the uncompen-
sated taking.” Id. at 193 (internal quotation marks and citation
omitted).
Because property owners have an automatic right to a form
of legal relief, it follows they have an automatic cause of action to
get that relief. They are instantly entitled to receive “just compen-
sation” in the courts. See id. at 194 (recognizing the ability to re-
cover “just compensation” from federal officials directly under the
Fifth Amendment pursuant to the Tucker Act and from local gov-
ernments under 42 U.S.C. § 1983). And they need not point to a
statute recognizing a right to “just compensation” or an acknowl-
edgment by the government of its willingness to pay. Rather, as
the Supreme Court has explained, “[s]uch a promise [i]s implied
because of the duty to pay imposed by the Amendment.” First Eng-
lish Evangelical Lutheran Church of Glendale v. Los Angeles County, 482
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20 Opinion of the Court 22-12041

U.S. 304, 315 (1987) (quoting Jacobs, 290 U.S. at 16). In fact, as we
explore in greater detail in Part III.D.5, the Supreme Court has al-
ready effectively held that the Takings Clause directly supplies a
cause of action against the federal government. See Jacobs, 290 U.S. at
16 (Tucker Act takings suits are “founded upon the Constitution of
the United States.”).
It makes structural sense that the Constitution grants an au-
tomatic cause of action to recover “just compensation.” As we ex-
plain further in Part III.D.2, because of the outsized burden legis-
latures placed on individual property owners before and during the
Revolution, the Framers did not trust those bodies to ensure “just
compensation” for takings. See Part III.D.2, infra. And if they did
not provide the Takings Clause with a cause of action in the ab-
sence of legislation creating one, the provision’s promised “just
compensation” remedy would be empty.
So the intrinsic cause of action within the Takings Clause
ensures meaning behind the constitutional guarantee. In other
words, by expressly giving Americans the right to get payment
from the government in the courtroom, the Constitution, of
course, too gives them the ticket they need to enter in the first
place. Otherwise, the government could just refuse to issue a ticket
anytime it didn’t want to pay. We don’t think the Founders made
an empty promise to Americans. A guaranteed remedy is a guar-
anteed remedy only if it’s accessible.
Ultimately, the text is straightforward. The Takings Clause
guarantees a legal damages-type remedy, and it is “self-executing”.
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22-12041 Opinion of the Court 21

These characteristics are especially noteworthy because they make

the Takings Clause a constitutional unicorn—no other constitu-
tional guarantee expressly contains these two features. Cf. DeVillier,
601 U.S. at 291 (“Constitutional rights do not typically come with a
built-in cause of action to allow for private enforcement in courts.”
(citation omitted)).
As a result, the Framers did not have to be concerned that a
cause of action directly under the Takings Clause would willy-nilly
lead to the finding of direct causes of action under multiple other
parts of the Constitution. In fact, only one other part of the Con-
stitution—Article I, Section 9’s Suspension Clause, which guaran-
tees the writ of habeas corpus—even refers to any remedy at all,
though not a compensatory one. RICHARD H. FALLON, JR., JOHN F.
MANNING, DANIEL J. MELTZER & DAVID L. SHAPIRO, HART &
WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 330
(7th ed. 2015) [hereinafter HART & WECHSLER]; see also Akhil Reed
Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1509 n.329
(1987) (“[T]he non-suspension clause is the original Constitution’s
most explicit reference to remedies.”).
That only two constitutional provisions expressly provide
for a remedy upon violation “sets [them] apart from others and at
least suggests these two rights—even if not all others in the Con-
stitution—have special protections against congressional abroga-
tion or dereliction” of their guaranteed remedies. DeVillier v. Texas,
63 F.4th 416, 439 (Oldham, J., dissenting from denial of rehearing
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22 Opinion of the Court 22-12041

en banc) (5th Cir. 2023), denying reh’g from, 53 F.4th 904 (5th Cir.
2023) (per curiam), vacated, 601 U.S. 285 (2024).
We can see that by how the Supreme Court has treated the
Suspension Clause. Indeed, the Supreme Court has expressly com-
pared the Constitution’s only two guaranteed remedies. In United
States v. Lee, the Court reasoned, if the Constitution offers “suffi-
cient authority for [a] court to interfere to rescue a prisoner from
the hands of those holding him under the asserted authority of the
government [by issuing a writ of habeas corpus], what reason is
there that the same courts shall not give remedy to the citizen
whose property has been . . . devoted to public use without just
compensation?” 106 U.S. at 218.
So we take a look at how the Supreme Court has treated the
Suspension Clause. The Suspension Clause guarantees “[t]he Priv-
ilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may re-
quire it.” U.S. CONST. art. I, § 9, cl. 2. That is, the Suspension Clause
secures the remedy of the writ of habeas corpus for detained or
imprisoned individuals except in highly limited circumstances. The
Supreme Court has construed this “Privilege” of habeas corpus to
be at least as extensive as it existed at the time of the Founding.
Boumediene v. Bush, 553 U.S. 723, 746 (2008) (“[A]t the absolute min-
imum the Clause protects the writ as it existed when the Constitu-
tion was drafted and ratified.” (citation and internal quotation
marks omitted)).
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22-12041 Opinion of the Court 23

Over the years, Congress has enacted legislation that creates

substitutes for the writ of habeas corpus. And the Supreme Court
has ensured that the new frameworks preserved the constitutional
guarantee. See, e.g., id. In 1948, for instance, Congress passed 28
U.S.C. § 2255 as a substitute for the writ of habeas corpus for pris-
oners in custody under a sentence that a federal court imposed. See
United States v. Hayman, 342 U.S. 205, 206–07 (1952). After a pris-
oner filed a § 2255 motion, a federal appeals court sua sponte raised
concerns that the statute violated the Suspension Clause. Id. at 209.
But the Supreme Court highlighted that the statute avoided those
constitutional concerns because “where the Section 2255 proce-
dure is shown to be ‘inadequate or ineffective’, the Section provides
that the habeas corpus remedy shall remain open to afford the nec-
essary hearing.” See id. at 223 (quoting 28 U.S.C. § 2255 (1947)).
The Court “implicitly held . . . that the substitution of a collateral
remedy” that does not purport to narrow the writ of habeas corpus
“does not constitute a suspension of the writ of habeas corpus.”
Swain v. Pressley, 430 U.S. 372, 381 (1977) (discussing Hayman).
Similarly, when the District of Columbia adopted a law mod-
eled on § 2255, the Supreme Court upheld it as constitutional under
the Suspension Clause. Id at 381–84. The Court explained that
“[s]ince the scope of the remedy provided by [the District of Co-
lumbia law] is the same as that provided by § 2255, it is also com-
mensurate with habeas corpus” in all relevant respects. Id. at 381–
82. So once again, when the substitute remedy did not narrow the
writ of habeas corpus, leaving a coextensive remedy to the consti-
tutional guarantee, it did not violate the Suspension Clause.
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24 Opinion of the Court 22-12041

But when Congress did narrow the constitutional remedy,

the Court took issue with its legislation. In the aftermath of the
September 11, 2001, terrorist attack, Congress enacted a statute
that was “intended to circumscribe habeas review” for aliens desig-
nated as enemy combatants and detained at the United States Naval
Station at Guantanamo Bay. Boumediene, 553 U.S. at 776. And
“[u]nlike in Hayman and Swain, . . . there [was] no effort to preserve
habeas corpus review as an avenue of last resort.” Id. at 777. Be-
cause the legislation narrowed the habeas corpus remedy, the
Court concluded it was “an inadequate substitute for habeas cor-
pus” and it “effect[ed] an unconstitutional suspension of the writ.”
Id. at 792. So the petitioners still had access to the underlying con-
stitutional remedy of a petition for a writ of habeas corpus.7 See
id. at 798.

7 The Dissent suggests, contrary to all the binding precedent we have cited,
that the Constitution doesn’t automatically secure access to the writ of habeas
corpus in federal courts. See Diss. Op. at 13–14. It highlights that the First
Congress had to grant the lower federal courts jurisdiction to issue this consti-
tutional remedy. See id. at 14. But the Dissent muddles the concepts of sub-
ject-matter jurisdiction and causes of action. Cf. Part III.A, supra (explaining
the distinction). Article III provides for just one mandatory federal court with
constitutionally prescribed jurisdiction: the Supreme Court. See U.S. CONST.
art. III, §§ 1, 2. It’s up to Congress to provide for and structure lower federal
courts and grant them jurisdiction. See id. § 1; Akhil Reed Amar, A Neo-Feder-
alist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U.L.
REV. 205, 212 (1985) (“Article III plainly imposes no obligation to create lower
federal courts.”); but see Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 331
(1816) (“It would seem . . . that congress are bound to create some inferior
courts . . . .”). Even so, though, Article III still requires eventual federal judi-
cial review, in a federal court of Congress’s choosing, for certain classes of
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22-12041 Opinion of the Court 25

We draw two simple lessons from this line of precedent on

habeas corpus substitutes: (1) Congress cannot narrow the scope
of a constitutionally prescribed remedy, and (2) if it tries to do so,
the underlying constitutional remedy remains directly available.
Because “just compensation” is a constitutionally prescribed
remedy—indeed, the only other constitutionally prescribed rem-
edy besides the writ of habeas corpus—Congress likewise cannot
narrow the scope of that right through legislation. See Seaboard Air
Line Ry. Co. v. United States, 261 U.S. 299, 304 (1923) (“Just compen-
sation is provided for by the Constitution and the right to it cannot
be taken away by statute”); cf. DeVillier, 601 U.S. at 292 (“[C]onsti-
tutional concerns do not arise when property owners have other
ways to seek just compensation.”). So if a legislative substitute for
“just compensation” is not coextensive with the constitutionally
prescribed remedy of “just compensation,” then the constitution-
ally prescribed remedy remains directly available.

cases. See Amar, A Neo-Federalist View, supra, at 238–54 (explaining that Article
III requires judicial review of three categories of mandatory cases); Martin, 14
U.S. at 330–36 (same). And those mandatory cases include cases that seek re-
lief under the Constitution’s two guaranteed remedies: the writ of habeas cor-
pus and “just compensation.” See U.S. CONST. art. III, § 2 (“The judicial Power
shall extend to all Cases, in Law and Equity, arising under this Constitu-
tion . . . .”). To be sure, Congress can pick the stage for the show. But it must
provide for some way to honor a valid ticket. It has done so for takings claims
by granting the federal courts federal-question jurisdiction. See 28 U.S.C. §
1331.
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26 Opinion of the Court 22-12041

For all these reasons, the text of the Fifth Amendment and
the structure of the Constitution require the conclusion that the
Takings Clause includes a direct cause of action.
2. The history behind the Takings Clause and the Four-
teenth Amendment shows that the Clause contains a
direct cause of action against local governments.
The history of the Takings Clause and the Fourteenth
Amendment also supports the conclusion that the Takings Clause
contains a direct cause of action against local governments. As we
show below, the history tells us several things: (1) the Framers of
the Takings Clause included the “just compensation” right to pro-
tect against government abuses—even by a well-meaning govern-
ment that acts for the public good; (2) the Framers designed the
Takings Clause with the intent that its “just compensation” remedy
would not depend upon legislation; (3) even when states did not
have their own versions of the Takings Clause, courts viewed the
just-compensation principle as a fundamental right and regularly
awarded “just compensation” in the form of damages in common-
law actions; (4) even before Congress gave federal courts jurisdic-
tion to hear specifically claims for “just compensation” for takings,
federal courts resolved takings claims against federal and state offi-
cials when they had jurisdiction; and (5) the Framers of the Four-
teenth Amendment intended for the amendment to make the Tak-
ings Clause remedy available against state and local governments
in federal courts.
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22-12041 Opinion of the Court 27

We start with colonial times. During that period, the funda-

mental protection against governmental seizure of property was
limited: the government could seize property only if the legislature
or a jury authorized it. See William Michael Treanor, The Original
Understanding of the Takings Clause and the Political Process, 95
COLUM. L. REV. 782, 785–88 (1995). But that protection contained
no right to “just compensation” once a majoritarian body approved
a taking.
This legislature-authorization protection traces to Article 39
of the Magna Carta. That article provided that “[n]o free man shall
be . . . dispossessed . . . except by the legal judgment of his peers or
by the law of the land.” Id. at 787. And it fit the period when Par-
liament reigned supreme with near plenary powers over the em-
pire. See id. at 786 n.15. Based on this historical background, sev-
eral colonial legislatures authorized uncompensated takings—as
long as a body representing the public good approved. 8 See id. at
787–88.
Still, two fundamental documents of the colonial era con-
tained provisions mandating “just compensation:” the Massachu-
setts Body of Liberties of 1641 and the 1669 Fundamental Consti-
tutions of Carolina (drafted by John Locke but never completely

8 William Blackstone in his famous Commentaries did recognize a right to “just

compensation” for takings of real property, although he gave no citation for
where English law recognized this principle. See Treanor, The Original Under-
standing, supra, at 786 n.15. And this appears to be a rare instance where his
view did not convince English jurists of the time. See id.
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28 Opinion of the Court 22-12041

implemented). Id. at 785–86. Yet even those two provisions had

limited applications, with Massachusetts applying the principle to
personal property only and Carolina to real property. Id. Other
colonies enacted statutes with compensation in select situations,
but they recognized no fundamental right. See James W. Ely, Jr.,
“That Due Satisfaction May be Made:” The Fifth Amendment and the
Origins of the Compensation Principle, 36 AM. J. LEGAL HIST. 1, 5–13
(1992).
Then the Revolution ushered in a new era for property law.
In advancing one of the most important causes in American history
for the public good, Washington’s army seized personal property—
including horses—without compensation. See Treanor, The Origi-
nal Understanding, supra, at 790; AKHIL REED AMAR, THE BILL OF
RIGHTS: CREATION AND RECONSTRUCTION 79–80 (1998); Jed Ruben-
feld, Usings, 102 YALE L.J. 1077, 1122–23 (1993).
That frustrated people. And those uncompensated seizures
triggered a sudden interest in guaranteeing compensation for the
unlucky few who suffered losses at the hands of even a well-mean-
ing majority. Treanor, The Original Understanding, supra, at 790;
AMAR, THE BILL OF RIGHTS, supra, at 79–80; Rubenfeld, Usings, su-
pra, at 1122–23; see also 1 HENRY ST. GEORGE TUCKER,
BLACKSTONE’S COMMENTARIES app. at 305-06 (Philadelphia, Birch &
Small 1803) (opining that the eventual federal just-compensation
guarantee “was probably intended to restrain the arbitrary and op-
pressive mode of obtaining supplies for the army, and other public
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22-12041 Opinion of the Court 29

uses, by impressment, as was too frequently practiced during the

revolutionary war, without any compensation whatever”).
Vermont, for instance, added a just-compensation principle
to its 1777 Constitution. VT. CONST. of 1777, ch. I, art. II. Massa-
chusetts followed suit in 1780. See MASS. CONST. of 1780, part I,
art. X. The Confederation Congress wasn’t far behind when it
passed the Northwest Ordinance, governing the Northwest Terri-
tories, with a similar guarantee. See Northwest Ordinance of 1787,
art. 2.
Meanwhile, when it came time to structure the new federal
government, most of the Founding generation focused on the
threat that a corrupt central government could pose to all Ameri-
cans. See AMAR, THE BILL OF RIGHTS, supra, at 77. As a result, the
Bill of Rights in large part emphasized constraining the power of
federal officials who might engage in self-dealing. Id.
But some Framers, most notably John Jay and James Madi-
son, zeroed in on the importance of checking even a good-natured
government’s abuses in the form of property takings. As the war
proved, even a well-intentioned government could trample the in-
dividual in the name of the public good. So following Jay and Mad-
ison’s lead, the Framers tacked the Takings Clause onto the Fifth
Amendment. Id. at 77–80.
That Clause is the only Bill of Rights provision designed to
act as a special outside check on Congress’s treatment of disfavored
persons. See id. at 77–78. It does so, as we’ve explained, by guaran-
teeing a remedy. And here’s the key point: both Jay and Madison
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30 Opinion of the Court 22-12041

were centrally concerned with protecting the right to “just com-

pensation” from the whims of the legislature. That’s why they
spearheaded an amendment that departed from the Magna Carta
model and would guarantee compensation for taken property even
when the legislature authorized the taking. See U.S. CONST. amend.
V.
We start with Jay. In 1778, Jay penned a letter to the New
York legislature, decrying “the Practice of impressing Horses,
Teems, & Carriages by the military, without the Intervention of a
civil Magistrate, and without any Authority from the Law of the
Land.” John Jay (A Freeholder), A Hint to the Legislature of the State
of New York, FOUNDERS ONLINE, https://perma.cc/32NL-432K
(emphases altered). Instead, Jay advanced a vision where “many
who . . . severely feel this kind of oppression, may . . . bring Actions
and recover Damages.” Id. (emphasis added). Our first Chief Justice
couldn’t have been clearer that he thought a plaintiff like Fulton,
who had his horses taken without compensation, should be able to
sue for damages.
As for the author of the Fifth Amendment—James Madi-
son—writing Federalist 10, Madison “was ahead of his time in ar-
guing that the dominant danger in America came from a possibly
overweening majority rather than from self-interested government
agents.” AMAR, THE BILL OF RIGHTS, supra, at 77; see also
FEDERALIST No. 10. In Madison’s view, a majoritarian body with-
out an outside check on its power offered insufficient protection for
property rights. See James Madison, For the National Gazette:
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22-12041 Opinion of the Court 31

Property (Mar. 27, 1792), FOUNDERS ONLINE,

https://perma.cc/K8EH-FU5N [hereinafter Property] (“Where an
excess of power prevails, property of no sort is duly respected.”).
So Madison crafted the Takings Clause. That Clause was
unique: it created a right that applied even when the government
didn’t misuse its power and instead acted “for public use.” See U.S.
CONST. amend. V; Madison, Property, supra (stating that no prop-
erty “shall be taken directly even for public use without indemnifi-
cation to the owner . . .”). Madison envisioned the protection of
that right through “independent tribunals of justice [who] will con-
sider themselves in a peculiar manner [its] guardians . . . .” James
Madison, Amendments to the Constitution ( June 8, 1789), FOUNDERS
ONLINE, https://perma.cc/ZF5L-W9ZN.
And as a congressman, Madison tried to honor that plan by
proposing a law granting the Supreme Court appellate jurisdiction
to review decisions on federal claims. See Floyd D. Shimomura, The
History of Claims Against the United States: The Evolution from a Legis-
lative Toward a Judicial Model of Payment, 45 LA. L. REV. 625, 638 &
n.94 (1985). In his view, the adjudication of a federal claim was a
“judicial rather than executive” power. Id. (citing 1 ANNALS OF
CONG. 611–12 ( J. Gales ed. 1834)) (recording Madison as having
stated that “deciding upon the lawfulness and justice of . . . claims,
and accounts subsisting between the United States and particular
citizens . . . partakes strongly of the judicial character . . . .”).
But of course, at the Founding, the federal judiciary was
largely undeveloped. Indeed, Congress didn’t grant the lower
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32 Opinion of the Court 22-12041

federal courts federal-question jurisdiction until almost a hundred

years later—in 1875. See Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat.
470, 470; see also HART & WECHSLER, supra, at 22–24, 27–28 (discuss-
ing the grounds for subject-matter jurisdiction for lower federal
courts at the Founding through Reconstruction). And it wasn’t un-
til 1887 that Congress passed the Tucker Act, which gave the Court
of Claims jurisdiction to hear cases requiring payment from the
United States. See Tucker Act, ch. 359, § 1, 24 Stat. 505, 505 (1887).
Without that, federal courts generally lacked the jurisdiction to
hear cases brought directly under the Fifth Amendment—even if
litigants theoretically had a cause of action directly under it. Liti-
gants might have had a ticket, but federal courts had no right to put
on the show.
And in any case, litigants filed few takings cases against the
federal government because the federal government used states to
condemn property for federal use. Treanor, The Original Under-
standing, supra, at 794 n.69; William Baude, Rethinking the Federal
Eminent Domain Power, 122 YALE L.J. 1738, 1762 (2013) (“During the
first twenty years of the federal government, Congress built quite
a few things and sometimes needed eminent domain . . . . [T]he
use of state power was uniform and unquestioned.”).
Still, federal courts did zealously enforce the Takings Clause
in the limited instances they had jurisdiction and a relevant suit
came up. In 1815, for example, the Supreme Court discussed the
“just compensation” right when it was reviewing a state-law action
brought to recover possession of property that federal officials
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22-12041 Opinion of the Court 33

occupied. In Meigs v. McClung’s Lessee, the Defendants were United

States officers who erected a garrison on property in North Caro-
lina, under the authority of the United States. 13 U.S. (9 Cranch)
11, 12 (1815) (bill of exceptions). Plaintiff McClung’s lessee claimed
to have leased the property where Meigs and the others resided. Id.
He asserted that the officers were on the property improperly. See
id. So he filed a common-law action of ejectment, a state-law ac-
tion to recover possession of property from any wrongful occu-
pier. 9 See id.
The Defendants argued “[t]hat the United States had a right
by the constitution to appropriate the property of individual citi-
zens” and they had done so “as officers of the United States, for the
benefit of the United States, and by their direction . . . .” Id. at 13.
But the trial court rejected that defense. Instead, it instructed the
jury that “if the land . . . was at the time vacant land[,] the United
States could appropriate it as they pleased; but if it was private
property[,] the United States could not deprive the individual of it
without making him just compensation therefor.” Id. at 14. The
trial court awarded judgment to McClung’s lessee. See generally id.
Then the Supreme Court affirmed. See id. at 18. In uphold-
ing the ejectment remedy, Chief Justice Marshall, writing for the
Court, explained that the land was “certainly the property of
[McClung’s lessee]; and the United States cannot have intended to

9 Although the case does not state why federal-court jurisdiction existed be-
low, we can surmise that there must have been diversity of citizenship be-
tween the parties. Cf. HART & WECHSLER, supra, at 22–24, 27–28.
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34 Opinion of the Court 22-12041

deprive him of it by violence, and without compensation.” Id. In

other words, the Court would not allow the United States to claim
possession of property without paying for it.
Meigs shows that the Marshall Court understood that, where
it had jurisdiction, the Constitution required it to enforce the right
to “just compensation.” And the Court enforced that right even
though that meant allowing a private citizen to sue officers of the
United States in federal court without the government’s consent.
See Lee, 106 U.S. at 210–11 (discussing how Meigs recognized a pri-
vate plaintiff can sue federal officers for possession of taken prop-
erty).
Still, Meigs was a rarity. And during those early years of the
Republic, in the absence of federal-question jurisdiction in lower
federal courts for alleged Takings Clause violations, Congress
served as the primary “forum for takings claims.” Treanor, The
Original Understanding, supra, at 794 n.69. Yet the terms of the Tak-
ings Clause ensure that Congress lacked “discretion to deny takings
claims mandated by the Takings Clause.” Id. After all, the Takings
Clause guaranteed the “just compensation” remedy. And Congress
instead acted only as the lawful judicial tribunal to hear damages
actions stemming directly under the Clause. See id.; Shimomura,
The History of Claims, supra, at 638 & n.94 (discussing Madison’s
view that the adjudication of federal claims was a judicial power).
So even before the federal courts had the jurisdiction to hear claims
for damages arising out of federal takings, litigants enjoyed an ef-
fective direct cause of action for “just compensation”—only
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22-12041 Opinion of the Court 35

Congress, not the courts, sat as the “judicial” tribunal to determine

the just amount.
The Dissent disagrees with our understanding of this early
history. It says Congress didn’t exercise a judicial function when it
adjudicated takings claims. See Diss. Op. at 20–22. Rather than act-
ing as “a pseudo-judicial tribunal,” the Dissent argues, Congress ex-
ercised its legislative “power over the purse” to pay claims as it
pleased. See id. at 20. For support, the Dissent draws from schol-
arship on how the early Congresses resolved all federal claims—not
specifically takings claims. See id. at 20–22 (first citing Shimomura,
The History of Claims, supra; then citing 2 WILSON COWEN, PHILIP
NICHOLS, JR. & MARION T BENNETT, THE UNITED STATES COURT OF
CLAIMS: A HISTORY (1978); and then citing William M. Wiecek, The
Origins of The United States Court of Claims, 20 Admin. L. Rev. 387
(1968)).
But a practice of discretionarily declining to pay valid claims,
while maybe permissible for most federal claims, would be a clear
violation of the text of the Fifth Amendment if extended to takings
claims. See U.S. CONST. amend. V (No “private property [shall] be
taken for public use, without just compensation.”). As we’ve ex-
plained, the Takings Clause was an innovation at the Founding—
designed as a unique constraint on legislative power that required
mandatory enforcement. In other words, Congress could act only
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36 Opinion of the Court 22-12041

consistently with the Constitution’s just-compensation guarantee

when it served as a tribunal for takings.10
And to the extent that early Congresses treated takings
claims like all other claims—to be clear, we don’t think the Dissent
has established they did—then Congress did so contrary to leading

10 The Dissent implies that Congress must retain jurisdiction over takings
claims to heed the Appropriations Clause, which provides that “[n]o Money
shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law . . . .” See Diss. Op. at 22–23 (quoting U.S. CONST. art. I, § 9, cl.
7). We start by noting that the Appropriations Clause has no relevance in the
case before us because we are considering whether the Takings Clause pro-
vides a cause of action against local governments, who are not encompassed by
the Appropriations Clause. See U.S. CONST. art. I, § 9, cl. 7. But even when it
comes to federal takings, for at least two reasons, Congress always maintains
control over the fisc, even when courts handle takings claims. First, even
though Congress must provide a forum for takings claimants to pursue their
constitutional cause of action, Congress retains authority to structure and as-
sign the tribunal with jurisdiction over these claims. See U.S. CONST. art. III, §
1; cf. Vishnevsky v. United States, 581 F.2d 1249, 1256 (7th Cir. 1978) (collecting
“a long line of cases” where “the Supreme Court has itself . . . specifically af-
firmed the appropriateness of mandamus relief to compel federal officers to
pay monies out of the public treasury, where the duty to do so was clear and
ministerial”). Second, the federal government is liable for takings only when
its officers act “within the general scope of their duties.” See Darby Dev. Co. v.
United States, 112 F.4th 1017, 1024 (Fed. Cir. 2024); Part III.D.3, infra. So to
owe “just compensation,” Congress must pass legislation imbuing an officer
with responsibilities that generally authorize her to take property and put the
public on the hook for “just compensation.” See Part III.D.3, infra; cf. CFPB v.
Cmty. Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416, 431 (2024) (“[T]he origins of
the Appropriations Clause confirm that appropriations needed to designate
particular revenues for identified purposes. Beyond that, however, early leg-
islative bodies exercised a wide range of discretion.”).
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22-12041 Opinion of the Court 37

Founders like Madison and Jay’s understanding of the Takings

Clause. In contrast to the “just compensation” remedy, early Con-
gresses drew the general claims-resolution process from early Eng-
lish practice when the “just compensation” principle did not con-
strain legislatures. See Shimomura, The History of Claims, supra, at
627–37 (describing the evolution of a legislative model of federal
claims resolution). Congress extended that common-law practice
after the Founding as it quickly moved to assert its dominance over
a yet-to-be-established judiciary. Id. at 637.
But in its zeal to cement power over the courts, Congress
sometimes took blatantly unconstitutional acts, often to kneecap
and subserviate the judiciary. See Hayburn’s Case, 2 U.S. (2 Dall.)
408, 410 n.* (1792) (providing circuit court opinions that an act of
Congress requiring the judiciary to evaluate pensioner claims sub-
ject to review by the Secretary of War and Congress was unconsti-
tutional); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) (con-
cluding Congress unconstitutionally attempted to expand the orig-
inal jurisdiction of the Supreme Court); cf. Stuart v. Laird, 5 U.S. (1
Cranch) 299 (1803) (acquiescing to a congressional act, which
wholly eliminated properly appointed Article III judgeships). A
weak early judiciary could do little to push back when Congress
disregarded the tripartite structure of our Constitution. See
Shimomura, History of Claims, supra, at 645–46 (discussing how the
Supreme Court permitted congressional adjudication of federal
claims “as a political fact” and “an extension of colonial history [ra-
ther] than a deduction of logic from the new Constitution” and
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38 Opinion of the Court 22-12041

“refused to dignify it with any theoretical or policy justification”

(footnote omitted)).
And the results of such congressional contempt for the
proper role of the judiciary were disastrous—as early as 1838, the
House of Representatives’s Committee on Claims released a report
that Congress had been inundated with private claims, consuming
time and resources and causing injustice. See id. at 648–51 (discuss-
ing early disfunction in the private bill system of claim adjudica-
tion). By the Civil War, President Lincoln echoed Madison, telling
Congress that “the investigation and adjudication of claims in their
nature belong to the judicial department . . . .” Wiecek, The Origins
of The United States Court of Claims, supra, at 398 (quoting 7
MESSAGES AND PAPERS OF THE PRESIDENTS 3252 ( James D. Richard-
son, ed., New York, 1897–1911)).
All of this is to say that early congressional practice didn’t
always conform to the Constitution’s structure as ratified and as
leading Founders understood it. Even assuming the Dissent’s un-
derstanding of early congressional treatment of takings claims is
correct (again, we don’t think it is), that practice would be one such
case. And we couldn’t summarily declare its constitutionality as a
“contemporaneous legislative exposition of the Constitution . . . ,
acquiesced in for a long term of years, [that] fixes the construction
to be given [the Constitution’s] provisions.” Eldred v. Ashcroft, 537
U.S. 186, 213 (2003) (quoting Myers v. United States, 272 U.S. 52, 175
(1926)). After all, it wasn’t.
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22-12041 Opinion of the Court 39

In fact, we don’t have an “unbroken practice since the found-

ing generation” of resolving takings claims through legislative ra-
ther than judicial adjudication. Cf. id. Americans did not acquiesce
to that practice. Instead, through the early nineteenth century, the
public grew even more attached to the idea of judicial enforcement
of the right to “just compensation”—vindicating Jay and Madison
in any dispute with Congress.
Specifically, the inclusion of a just-compensation principle in
the Fifth Amendment led to a wave of recognition of the right at
the state level. And as a result, our history contains repeated ac-
knowledgment that citizens were entitled to recover “just compen-
sation” in the courts. Indeed, by the middle of the century, it be-
came clear that state just-compensation clauses inherently con-
tained a right to bring damages actions. This history offers im-
portant context to understand the intent of the Framers of the
Fourteenth Amendment, who extended the reach of the federal
Takings Clause to the states. So we take a moment to review it.
When the country ratified the Fifth Amendment, only one
of the first thirteen states, Massachusetts, recognized a right to
“just compensation” in its constitution. AMAR, THE BILL OF RIGHTS,
supra, at 79. By 1800, two had. J.A.C. Grant, The “Higher Law”
Background of the Law of Eminent Domain, 6 WIS. L. REV. 67, 70
(1931). By 1850, six did. Id. And by 1868, eight. Id. Plus, nearly
every new state admitted to the union included a just-compensa-
tion provision. Id. Not only that, but leading American jurists pro-
claimed a right to “just compensation” as a fundamental right
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40 Opinion of the Court 22-12041

undergirding free government. See, e.g., 2 JAMES KENT,

COMMENTARIES ON AMERICAN LAW 339 (New York: O. Halsted,
1832) (just compensation “is founded in natural equity, and is laid
down by jurists as an acknowledged principle of universal law”); 3
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES § 1784, at 661 (Boston: Hilliard, Gray, 1833) (same).
Ultimately, courts in virtually every state extended the prin-
ciple of “just compensation” against state and local governments.
AMAR, THE BILL OF RIGHTS, supra, at 269. And they did so even if
their state constitutions didn’t mention “just compensation.” Ra-
ther, courts discerned the just-compensation principle to be a fun-
damental right. See, e.g., Gardner v. Newburgh, 2 Johns. Ch. 162, 166
(N.Y. 1816) (“a fair compensation must, in all cases, be previ-
ously made to the individuals affected . . . . This is a necessary qual-
ification accompanying the exercise of legislative power, in taking
private property for public uses; the limitation is admitted by the
soundest authorities, and is adopted by all temperate and civilized
governments, from a deep and universal sense of its justice.”);
Sinnickson v. Johnson, 17 N.J.L. 129, 146 (1839) (describing just com-
pensation as “operative as a principle of universal law”); Young v.
McKenzie, 3 Ga. 31, 44 (1847) (enforcing the right declared in the
Takings Clause because it embodies a “great common law princi-
ple . . . applicable to all republican governments, and which derived
no additional force, as a principle, from being incorporated into the
Constitution of the United States.”); Bradshaw v. Rodgers, 20 Johns.
103, 105–06 (N.Y. Sup. Ct. 1822) (same); Crenshaw v. Slate River Co.,
27 Va. (6 Rand.) 245, 265 (1828) (opinion of Carr, J.) (same); The
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22-12041 Opinion of the Court 41

Proprietors of the Piscataqua Bridge v. N.H. Bridge, 7 N.H. 35, 66 (1834)

(same); L.C. & C.R.R. Co. v. Chappell, 24 S.C.L. (Rice) 383, 387 (1838)
(same); Hall v. Washington County, 2 Greene 473, 478 (Iowa 1850)
(same); State v. Glen, 52 N.C. (7 Jones) 321, 330–31 (1859) (same).
When they had jurisdiction, federal courts, including the Su-
preme Court, also invoked or applied the just-compensation prin-
ciple against the actions of states as a fundamental right against all
governments. See, e.g., VanHorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.)
304, 310 (C.C.D. Pa. 1795) (“The [Pennsylvania] legislature . . . had
no authority to make an act devesting one citizen of his freehold,
and vesting it in another, without a just compensation.”); Fletcher v.
Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (“It may well be doubted
whether the nature of society and of government does not pre-
scribe some limits to the legislative power; and, if any be pre-
scribed, where are they to be found, if the property of an individ-
ual, fairly and honestly acquired, may be seized without compen-
sation.”); Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 52 (“[T]hat the leg-
islature can repeal statutes creating private corporations, or con-
firming to them property already acquired under the faith of pre-
vious laws, and by such repeal can vest the property of such corpo-
rations exclusively in the state, or dispose of the same to such pur-
poses as they may please, without the consent or default of the cor-
porators, we are not prepared to admit; and we think ourselves
standing upon the principles of natural justice, upon the funda-
mental laws of every free government, upon the spirit and the let-
ter of the constitution of the United States, and upon the decisions
of most respectable judicial tribunals, in resisting such a
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42 Opinion of the Court 22-12041

doctrine.”); Green v. Biddle, 21 U.S. (8 Wheat.) 1, 38 (1823) (“[B]y the

common law of Virginia, if not by the universal law of all free gov-
ernments, private property may be taken for public use, upon mak-
ing to the individual a just compensation.”); Bonaparte v. Camden &
A.R. Co., 3 F. Cas. 821, 828 (C.C.D.N.J. 1830) (The Takings Clause
“is the declaration of what in its nature is the power of all govern-
ments and the right of its citizens . . . .”).
And once a court recognized a just-compensation right
against a state, a plaintiff could recover damages for the violation
of that right. Plaintiffs brought their actions to recover compensa-
tion for takings in common-law forms of action—typically a tres-
pass action against an offending official. See Robert Brauneis, The
First Constitutional Tort: The Remedial Revolution in Nineteenth Cen-
tury State Just Compensation Law, 52 VAND. L. REV. 57, 67–83 (1999).
That official would justify their action as authorized under state
law. And the court would invalidate that defense when the action
was an uncompensated taking. 11 See id. at 67–68, 83–97. And then
courts could award damages available in trespass actions. Id. at 97–
100; see also Sinnickson, 17 N.J.L. at 147; Bradshaw, 20 Johns. at 103,
106; Bos. & R. Mill Corp. v. Gardner, 19 Mass. (2 Pick.) 33, 43 n.2
(1823); Thayer v. Boston, 36 Mass. (19 Pick.) 511, 515–17 (1837); State

11 Although rarer, as in Meigs, these state-law suits could also be brought

against federal officials who took property claiming official authority but vio-
lated the Federal Takings Clause. See, e.g., Meigs, 13 U.S. 11; Lee, 106 U.S. 196;
Amar, Of Sovereignty and Federalism, supra, at 1512 (discussing how a state-law
trespass action allowed suit against federal officials in Lee for an uncompen-
sated taking).
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22-12041 Opinion of the Court 43

v. Hooker, 17 Vt. 658, 672 (1845); Pumpelly v. Green Bay Co., 80 U.S
(13 Wall.) 166, 175–80 (1872). Although these damages were ini-
tially limited to retrospective relief, by 1860 some courts had al-
lowed plaintiffs to recover full permanent damages.12 Brauneis,
The First Constitutional Tort, supra, at 100; see also, e.g., Mayor &
Council of Rome v. Perkins, 30 Ga. 154 (1860). In effect, courts al-
lowed direct damages actions for “just compensation” to move for-
ward.
And during the later nineteenth and early twentieth centu-
ries, states abandoned rigid common-law forms of action as pre-
requisites for suits for damages and combined the courts of law and
equity. Cf. Douglas Laycock, How Remedies Became a Field: A History,
27 REV. LITIG. 161, 171 (2008) (“Anglo-American law abolished the
writ system, and merged the courts of law and equity, over roughly
a century from 1848 . . . to 1937 . . . . In the nineteenth century, we
begin to see transsubstantive treatises on damages . . . .”). As part
of this process, courts in the 1870s and 1880s described damages
actions to recover “just compensation” not only as trespass but also
as actions derived directly from constitutional guarantees. See Brauneis,
The First Constitutional Tort, supra, at 109–15; see also, e.g., City of El-
gin v. Eaton, 83 Ill. 535, 536–37 (1876) (“[T]he right to recover dam-
ages was given by the constitution . . . .”).

12Retrospective relief might allow Fulton full recovery here because no evi-
dence in the record shows the possibility of return of his horses. So his retro-
spective loss would be their full value.
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44 Opinion of the Court 22-12041

Even as some state courts conceptualized just-compensation

clauses as not expressly providing a remedy, they held that the right
necessarily implied the existence of a guaranteed judicial remedy
allowing for recovery. See, e.g., Johnson v. City of Parkersburg, 16 W.
Va. 402, 426 (1880) (“Where the Constitution forbids a damage to
the private property of an individual, and points out no remedy,
and no statute gives a remedy, for the invasion of his right of prop-
erty thus secured, the common law, which gives a remedy for every
wrong, will furnish the appropriate action for the redress of his
grievance.”) (emphasis in original); Householder v. City of Kansas, 83
Mo. 488, 495 (1884) (quoting Tapley v. Forbes, 84 Mass. (2 Allen) 20,
24 (1861)) (“Wherever a statute or the organic law creates a right,
but is silent to the remedy, the party entitled to the right ‘may resort
to any common law action which will afford him adequate and ap-
propriate means of redress.’”).
Federal courts, too, inferred causes of action, directly under
state constitutions, against local governments for damages. See,
e.g., Blanchard v. City of Kansas, 16 F. 444, 446 (W.D. Mo. 1883) (Mil-
ler, J.) (“[S]ince the positive declaration of the constitution is that
private property shall not be taken or damaged for public use with-
out just compensation, . . . it is bound in some way to make that
just compensation, and . . . the law shall compel it to do it.”); see
also Sumner v. Philadelphia, 23 F. Cas. 392 (C.C.E.D. Pa. 1873) (award-
ing damages for common-law taking).
We emphasize that these courts recognized actions directly
under state constitutions without acknowledging that doing so
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22-12041 Opinion of the Court 45

marked a fundamental change from the previous common-law ac-

tions litigants used to obtain “just compensation” in the form of
damages. See Elgin, 83 Ill. at 536–37; Johnson, 16 W. Va. at 424–26;
Householder, 83 Mo. at 495; Blanchard, 16 F. at 446–47. 13 For these
courts, “the limitation, turning as it did on compensation, obvi-
ously and necessarily encompassed the remedial grant . . . .”
Brauneis, The First Constitutional Tort, supra, at 113. And so, in ef-
fect, these courts recognized as direct actions the same damages
actions that other courts earlier did as trespass actions. See, e.g.,
Blanchard, 16 F. at 447 (“[T]he other party has . . . the right that the
law gave her to recover these damages in any proper form of ac-
tion.”).
In sum, through the nineteenth century, it became clear that
state just-compensation clauses inherently contained a right to
bring damages actions. 14

13 West Virginia came the closest to acknowledging an innovation. It partially

justified its decision by stating that “[a] constitutional prohibition forbidding
an injury to the property of a citizen is certainly as effective as a statute framed
for the same purpose . . . .” Johnson, 16 W. Va. at 425. But it made this state-
ment after a long summary describing how “the pride of the common law
[was] that it furnishes a remedy for every wrong.” Id. at 424. So West Virginia
framed its decision as a logical extension of traditional common-law practices.
14 The Dissent chastises us for “point[ing] to no decision from the early republic

that permitted a suit at law against the government for compensation under
the Takings Clause.” See Diss. Op. at 23–26 (emphasis in original). It empha-
sizes that at the Founding, actions to recover “just compensation” proceeded
in rigid common-law forms. See id. But it misunderstands the key point. True,
at the Founding, litigants had to bring state actions for damages like “just com-
pensation” in statutorily prescribed vehicles or rigid common-law forms like
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46 Opinion of the Court 22-12041

And as we’ve mentioned, this history of a just-compensation

right under state law helps explain why a direct federal right of ac-
tion exists. That’s so because despite the availability of state reme-
dies for state and local-government takings, the Framers of the
Fourteenth Amendment thought state damages actions for “just
compensation” were an insufficient remedy.
So with Section One of the Fourteenth Amendment, they
constitutionalized a right to bring a federal action against local gov-
ernments. In doing so, the Framers overruled Barron v. Baltimore,
32 U.S. (7 Pet.) 243 (1833).
In Barron, the Supreme Court considered the case of a plain-
tiff who sought “to recover damages for injuries to [his] wharf-

trespass. See Brauneis, The First Constitutional Tort, supra, at 69–71. That was
how the legal system worked back then. See id. But states abolished rigid forms
of action over the mid-nineteenth to early-twentieth century. See Laycock,
How Remedies Became a Field, supra, at 171. As part of the process, courts de-
scribed the old common-law actions for “just compensation” as actions di-
rectly under state takings clauses. See Brauneis, The First Constitutional Tort,
supra, at 109–15. But, at bottom, both the common-law and direct-takings ac-
tions were the same kind of actions with a shared lineage. See id. They both
ensured that citizens could always exercise their constitutional rights to obtain
“just compensation” in the courts. Compare Bos. & R. Mill Corp., 19 Mass. at
43 n.2, with Householder, 83 Mo. at 495. Today, we have a federal right to “just
compensation” against local governments that guarantees Americans may re-
cover damages in a federal forum with jurisdiction. See U.S. CONST. amends.
V; XIV, § 1. And we have a federal judicial system that recognizes only “one
form of action—the civil action.” See FED. R. CIV. P. 2. So we translate the
language of the Founding to the modern world and recognize the Constitu-
tion provides a cause of action directly under the Takings Clause. And it may
be brought in federal courts with appropriate jurisdiction.
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22-12041 Opinion of the Court 47

property . . . arising from the actions” of the local government of

Baltimore. 32 U.S. at 243 (syllabus). The plaintiff contended that
the Takings Clause directly applied to the states. Id. at 247. So, he
asserted, Baltimore committed “an actionable tort” by “depriv[ing]
a citizen of his property, though for public uses, without indemni-
fication . . . .” Id. at 245 (syllabus). The Supreme Court disagreed.
It held that the Takings Clause “is intended solely as a limitation on
the exercise of power by the government of the United States, and
is not applicable to the legislation of the states.” Id. at 250–51. As
a result, the Court, as the ultimate federal court, determined it
“ha[d] no jurisdiction of the cause . . . .” Id. at 251.
The Framers of the Fourteenth Amendment intended for
the Amendment to overturn Barron. Despite extensive state-law
protections for “just compensation” by the 1860s, the Framers
made it clear that they wanted federal enforcement against state
and local uncompensated takings to be available.
For his part, John Bingham, the author of Section One of
the Fourteenth Amendment, noted that before Reconstruction, the
Takings Clause was not a “limitation[] upon the States as can be
enforced by Congress and the judgment of the United States courts.”
See CONG. GLOBE, 39TH CONG., 2d Sess. 811 (1867) (emphasis
added); see also id. 1st Sess. 1065 (1866) (statement of Rep. Bing-
ham) (Section One was “proposed . . . to protect the thousands and
tens of thousands and hundreds of thousands of loyal . . . citizens
of the United States whose property, by State legislation, has been
wrested from them under confiscation . . . .”). So he expressed the
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48 Opinion of the Court 22-12041

desire for the Fourteenth Amendment to change that state of af-

fairs. See id. 2d Sess. 811 (1867).
Bingham later explained that he “had read” Barron, which he
described as a case where “the city had taken private property for
public use, without compensation as alleged, and there was no re-
dress for the wrong in the Supreme Court of the United States.” Id., 42D
CONG., 1st Sess. App. 84 (1871) (emphasis added). Barron “induced
[Bingham] to attempt to impose by constitutional amendments
new limitations upon the power of the States . . . .” Id. As Bingham
saw things, when left to their own devices, the States “took prop-
erty without compensation, and the [citizen] had no remedy.” Id.
at App. 85. But the Fourteenth Amendment was intended to fix
that. 15

15Bingham made these later comments in debates over the Ku Klux Klan Act
of 1871, 17 Stat. 13 (1871), section one of which is now codified as 42 U.S.C.
§ 1983. It might be easy to construe his advocacy for § 1983, proclaiming that
“[t]he people of the United States are entitled to have their rights guarantied
to them by the Constitution of the United States, protected by national law,”
as a belief that no remedy yet secured “just compensation” in court. See CONG.
GLOBE, 42D CONG., 1st Sess. App. 85 (1871). But Bingham clarified that while
“the negative limitations imposed by the Constitution on States can be en-
forced by law against individuals and States,” Congress can also provide for
additional enforcement on top of that. See id. So, for example, the Thirteenth
Amendment bars slavery, a prohibition that could presumably be enforced in
court, even in the absence of legislation. But Congress can (and did) add an
extra protection, making it a felony to enslave someone. Id. Bingham’s fierce
advocacy for the Ku Klux Klan Act can also be explained by his emphasis on
the other parts of the Act beyond § 1983, on which he appeared more focused.
See id. For example, the Act provided additional civil and criminal penalties
for those who conspiratorially interfered with civil rights. Ku Klux Klan Act
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22-12041 Opinion of the Court 49

Another leading Framer of the Fourteenth Amendment ech-

oed Bingham’s call for federal protections against takings. Senator
Jacob Howard highlighted the need to pass the Fourteenth Amend-
ment because “it has been repeatedly held that the restriction con-
tained in the Constitution against the taking of private property for
public use without just compensation is not a restriction upon State
legislation . . . .” Id., 39TH CONG., 1st Sess. 2765 (1866). Instead,
“the States [were] not restrained from violating the principles em-
braced in [the Bill of Rights] except by their own local constitu-
tions, which may be altered from year to year.” Id. at 2766.
Howard and Bingham believed that state protection for the
right to “just compensation” just wasn’t enough. Rather, they
thought, federal law needed to independently protect the just-com-
pensation principle. And they thought so even though, as we’ve
noted, by the late 1860s and 70s, when the Fourteenth Amendment
was ratified, the law had developed under state courts to the point
where a right to “just compensation” included a right to sue for
damages from an uncompensated taking. So at a minimum, the

of 1871, §§ 2–6, 17 Stat. at 13–15. Indeed, he highlighted that some “combina-

tions . . . destroying the property of the citizen” may be “too powerful to be
overcome by judicial process . . . .” See CONG. GLOBE, 42D CONG., 1st Sess.
App. 85 (1871). And we must also consider his comments against the back-
ground of a lack of federal-question jurisdiction for the lower federal courts
until 1875, see Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. at 470, and the Supreme
Court’s failure to recognize the right to “just compensation” as applicable to
the states until 1897. See Chi., B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 241
(1897). Faced with that judicial environment, legislation affirmatively provid-
ing a cause of action for takings likely seemed more important.
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50 Opinion of the Court 22-12041

Framers of the Fourteenth Amendment understood that they were

constitutionalizing a right to sue for “just compensation” against
state and local governments in a federal forum.
The Dissent offers no persuasive retort to all this antebellum
and Reconstruction history. See Diss. Op. at 25–26. Instead, it dis-
misses evidence from state law because, it says, “[m]any jurists
viewed state constitutional declarations of rights differently than
federal declarations of the same rights.” 16 See id. at 25 (citing Jud

16 Ironically, the Dissent also asserts that almost all rights in the Constitution,
including the right to “just compensation,” draw their meaning from pre-Rat-
ification understandings. See Diss. Op. at 7. So under the Dissent’s view, the
Takings Clause would have to draw its meaning from its few precursors-—
namely the Vermont and Massachusetts constitutions. See Part III.D.2, supra.
Put more generally, the federal right to “just compensation” would be defined
with the same contours as the state rights to “just compensation.” Cf. Baude,
Campbell & Sachs, General Law and the Fourteenth Amendment, supra n.6, at 1199
& n.81, 1236 (explaining that certain rights had “determinate legal content,”
including the right to just compensation). As a result, whether state constitu-
tional guarantees of “just compensation” automatically secured judicial relief
for takings would be critically relevant. And Vermont’s and Massachusetts’s
constitutions did. See Bos. & R. Mill Corp., 19 Mass. at 43 n.2 (“Where it appears
that a resolve of the legislature, directing the location of a road, makes no pro-
vision for a ‘just compensation’ to the owners of property to be taken for the
purposes of the road, agreeably to the provisions of the constitution, the
agents of the State in constructing the road are liable to be treated as trespass-
ers by those whose property is so taken, or upon whose property such agents
enter for locating the road. Compensation in such case should be made or
provided for when the property is taken.” (internal citation omitted)); Thayer,
36 Mass. at 515–17 (recognizing broad municipal liability for the actions of
municipal officers); Hooker, 17 Vt. at 672 (“[I]f the sheriff [unlawfully]
takes property . . . he must answer in a suit for damage . . . .”).
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22-12041 Opinion of the Court 51

Campbell, Constitutional Rights Before Realism, 2020 U. Ill. L. Rev.

1433, 1441–42); but see William Baude, Jud Campbell & Stephen E.
Sachs, General Law and the Fourteenth Amendment, 76 STAN. L. REV.
1185, 1199 & n.81, 1236 (2024) (explaining that antebellum “Amer-
icans enjoyed certain fundamental legal rights with determinate le-
gal content—rights that ‘no state could rightfully abridge,’” includ-
ing the right to just compensation for takings). And it effectively
dismisses the intent of the Framers of the Fourteenth Amendment
as irrelevant. See Diss. Op. at 25–26.
But the Takings Clause applies to local governments only through
the Fourteenth Amendment. So the original intent of Americans
when they ratified that Amendment governs its meaning. See gen-
erally AMAR, THE BILL OF RIGHTS, supra. And leading up to the Civil
War, Americans loudly confirmed that they believed the “just com-
pensation” right to be judicially enforceable. They also made clear
they intended the new Amendment to overturn Barron and make
the right federally enforceable.17

17 We note that the Dissent’s minimum enforcement mechanism for the Tak-
ings Clause—private bills—is an ill fit for violations by local governments.
Congress isn’t liable for violations by local governments, so it has no obliga-
tion to pay for them. And Congress likely can’t force state legislatures to pass
bills paying for takings by local governments. See New York v. United States, 505
U.S. 144, 179 (highlighting that “[n]o . . . constitutional provision authorizes
Congress to command state legislatures to legislate”). So even if at the Found-
ing Congress could handle takings violations through private bills, the Four-
teenth Amendment demands an alternative remedy. Cf. Fuld v. Palestine Liber-
ation Org., 145 S. Ct. 2090, 2105 (2025) (recognizing a difference in the appro-
priate jurisdictional inquiries under the Due Process Clauses of the Fifth and
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52 Opinion of the Court 22-12041

Given this robust support for the just-compensation princi-

ple after the Civil War, it’s no wonder that the Supreme Court rec-
ognized it as the first provision of the Bill of Rights to apply to the
States. See Chi., B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 241
(1897). In fact, the Court did so fifty years before Justice Hugo
Black launched a conversation about whether the Fourteenth
Amendment incorporated the protections of the Bill of Rights. See
Adamson v. California, 332 U.S. 46, 74–75 (1947) (Black, J., dissenting)
(concluding the Framers of the Fourteenth Amendment intended
to apply the protections of the Bill of Rights to the states).
And the Court later heard several equitable cases against lo-
cal governments proceeding directly under the Takings Clause
(with no reference to § 1983 or any other statutory cause of action).
See Norwood v. Baker, 172 U.S. 269, 276 (1898); Cuyahoga River Power
Co. v. Akron, 240 U.S. 462, 463 (1916); Village of Euclid v. Ambler Realty
Co., 272 U.S. 365, 384 (1926); Del., L. & W. R. Co. v. Morristown, 276
U.S. 182, 188 (1928); Dohany v. Rogers, 281 U.S. 362, 364 (1930). 18 So
once the court incorporated the right to “just compensation”

Fourteenth Amendments to “respect . . . the distinct sovereignties” the two

Amendments govern).
18The Supreme Court observed that “the mere fact that the Takings Clause
provided the substantive rule of decision for . . . equitable claims . . . does not
establish that it creates a cause of action for damages, a remedy that is legal,
not equitable, in nature.” DeVillier, 601 U.S. at 292. So these cases aren’t con-
clusive on the question before us. Still, they offer additional support that the
Takings Clause directly mandates a federal remedy against local governments
independent of a statutory cause of action.
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22-12041 Opinion of the Court 53

against the states, it was clear that the Takings Clause included a
direct federal remedy for its violation by state and local govern-
ments.
Altogether, this history establishes that from the Founding
through Reconstruction, Americans believed that the just-compen-
sation principle, when it applied, offered relief—even if at times,
the provided forum was actually in Congress or before state courts
in common-law actions. And that relief always included damages.
The Framers of the Fourteenth Amendment then ensured a federal
guarantee of the “just compensation” remedy against state and lo-
cal governments. This history supports the conclusion that a fed-
eral cause of action for damages exists directly under the Takings
Clause.
3. The direct cause of action under the Takings Clause
is available here against Fulton County.
As we’ve discussed, the text, structure, and history of the
Constitution all lead to the conclusion that the Takings Clause con-
tains a direct cause of action. Now, we consider whether that direct
cause of action is available to Fulton. We conclude that it is.
The Supreme Court’s habeas jurisprudence teaches us that
a substitute remedy for a constitutional remedy may suffice, if it’s
no narrower than the constitutional remedy. See Part III.D.1, supra.
But no other remedy available to Fulton at least duplicates the
scope of the just-compensation remedy under the Fifth and Four-
teenth Amendments.
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54 Opinion of the Court 22-12041

Congress hasn’t provided for an adequate remedial system

for uncompensated takings by local governments in situations like
this one—leaving Fulton remediless. Two forms of federal judicial
relief might be adequate to vindicate the just-compensation right:
damages actions under 42 U.S.C. § 1983 and equitable relief. But
neither completely captures the constitutional guarantee here.
We begin with § 1983. Fulton filed under § 1983, which al-
lows a litigant to seek damages against “[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage, of
any State . . . subjects . . . any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . .” 42 U.S.C. § 1983. That allows suits against local
governments to recover “just compensation.” Knick, 588 U.S. at
194. But a limitation on § 1983 cases bars a class of Fifth Amend-
ment plaintiffs.
Under Monell v. Department of Social Services, a local govern-
ment may not be sued under § 1983 “for an injury inflicted solely
by its employees or agents.” 436 U.S. at 694. Rather, suits may
move forward only “when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy, inflicts the in-
jury . . . .” Id.
This limitation makes the § 1983 remedy narrower than the
Takings Clause’s direct cause of action in some cases, like Fulton’s.
That’s so because under the Takings Clause, the duty to provide
“just compensation” attaches to a government when its officer acts
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22-12041 Opinion of the Court 55

“within the general scope of their duties.” See Darby Dev. Co. v.
United States, 112 F.4th 1017, 1024 (Fed. Cir. 2024). And it doesn’t
matter whether that taking resulted directly from a “regulation (or
statute, or ordinance, or miscellaneous decree).” Cedar Point
Nursery v. Hassid, 594 U.S. 139, 149 (2021). So Fulton could satisfy
that showing here, even though he can’t establish that the County
took his horses under an official policy or custom. 19
To be sure, the lesser showing courts have required in tak-
ings cases doesn’t relieve a litigant of his obligation to show that
the taking is traceable to the governmental entity alleged to have
committed it. And it’s not enough to find simply that an officer
employed by the relevant government interfered with property.
See, e.g., In re Chi., Milwaukee, St. Paul & Pac. R.R. Co., 799 F.2d 317,
326 (7th Cir. 1986) (“Accidental, unintended injuries inflicted by
governmental actors are treated as torts, not takings.”).
But even so, the Supreme Court has repeatedly found the
government liable for takings that occur “without express statutory
authority or prohibition . . . . as a consequence of a[n] . . . officer’s
discharge of his normal responsibilities . . . .” See Ramirez de Arel-
lano v. Weinberger, 724 F.2d 143, 151–53 (D.C. Cir. 1983) (Scalia, J.)
(collecting cases), vacated & reheard, 745 F.2d 1500 (D.C. Cir. 1984)

19 For this reason, Fulton didn’t “waive” his right to “just compensation” when

he conceded he could not meet Monell’s policy-or-custom requirement as the

Dissent contends. See Diss. Op. at 3. The Takings Clause offers a broader
protection than § 1983. The key point is the statute sets a higher bar for relief
than the Constitution imposes on Fulton.
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56 Opinion of the Court 22-12041

(en banc), vacated sub nom., Weinberger v. Ramirez de Arellano, 471

U.S. 1113 (1985). 20 So when an officer takes property within his
typical responsibilities, the right to “just compensation” kicks in
against his government.
Great Falls Manufacturing Co. v. Garland shows how this
works. 124 U.S. 581 (1888). There, the Court weighed whether a
compensable taking occurred when the Secretary of War took
property to construct a dam outside a surveyed area Congress au-
thorized for takings. Id. at 595–96. Even though the Secretary’s
actions were not fully in accord with official policy, the Court de-
termined that “still the United States [was] under an obligation im-
posed by the constitution to make just compensation for all that
ha[d] been in fact taken and [was] retained for the proposed dam.”
Id. at 596. The Court emphasized that the Secretary “honestly and
reasonably exercise[d] the discretion with which he was invested,”
even if he ultimately went beyond official policy. Id. at 597.
Or consider Portsmouth Harbor Land & Hotel Co. v. United
States. 260 U.S. 327 (1922). There, the Supreme Court considered
whether a plaintiff properly alleged a taking when officers manning
a fort neighboring his resort property planned to repeatedly shoot
cannon projectiles over that property. Id. at 328–30. The Court
found the plaintiff met his burden for his case against the

20 Although the en banc court vacated the panel opinion in Ramirez de Arellano,

it “did not disagree with the panel’s analysis of the authorization issue.” Del-
Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1363 (Fed. Cir. 1998).
On this point, then-Judge Scalia’s opinion remains persuasive.
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22-12041 Opinion of the Court 57

government to proceed, even though he did not allege a specific

policy authorizing the firing. See id. at 330. It was enough that
the “United States built the fort and put in the guns and the
men . . . .” Id. But if the plaintiff had to meet § 1983’s added re-
quirement to plead an official policy or custom, his claim would
have likely failed because all he could allege was that his harm
stemmed from the actions of the government’s agents.
United States v. Causby presents yet another example. 328 U.S.
256 (1946). In that case, the Supreme Court found the government
on the hook for a taking when the Civil Aeronautics Authority au-
thorized flights that passed 83 feet above the plaintiff’s property.
That was so even though Congress had authorized the taking of
only “navigable airspace”—defined by regulation as at least 300 feet
above the ground. Id. at 258–60, 263–64.
This requirement of “just compensation” applies just as
equally to local governments as it does to the federal government.
When, as in Georgia, local governments are political subdivisions
of a state, see GA. CODE ANN. § 25-3-4 (2025), they must furnish
compensation for their takings. See Knick, 588 U.S. at 189 (“If a local
government takes private property without paying for it, that gov-
ernment has violated the Fifth Amendment—just as the Takings
Clause says . . . . ”). After all, the Takings Clause is “applicable to
the States through the Fourteenth Amendment . . . .” Cedar Point
Nursery, 594 U.S. at 147. And the Framers of the Fourteenth
Amendment, as we’ve mentioned, specifically sought to reverse
Barron v. Baltimore, the decision where the Supreme Court held
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58 Opinion of the Court 22-12041

that, before the Fourteenth Amendment, the Takings Clause did

not apply to the actions of a city. See CONG. GLOBE, 42D CONG., 1st
Sess. App. 84 (1871) (statement of Rep. Bingham) (discussing how
Barron was top of mind when drafting Section One of the Four-
teenth Amendment).
So if like in Great Falls Manufacturing Co., a city official exer-
cised eminent domain outside a limited area that official policy au-
thorized, his local government would still be liable. Or if, as in
Portsmouth, a local police force engaged in repeated firing practice
over private property, its government would be responsible. Or, as
in Causby, if a fire department consistently flew helicopters 83 feet
over an individual’s property when the city council only authorized
flights at a minimum altitude of 300 feet, the local government
would pay the price. In all these examples, a plaintiff would be en-
titled to “just compensation” from his local government but would
not necessarily be able to plead a § 1983 action. 21

21 The Dissent acknowledges that the federal government is liable for takings
“perpetrated by its officers acting in ‘the normal scope of [their] duties.’” See
Diss. Op. at 30 (alteration in original). Yet it contends the Takings Clause of-
fers less protection for takings that officers of local governments commit. See
id. This position is inconsistent with its argument that the Fourteenth Amend-
ment’s protections apply identically between the federal and state govern-
ments. See id. at 26. And it’s also odd given the well-documented focus of the
Framers on overturning Barron, which, as we’ve noted, held that the Takings
Clause applied to only those takings by the federal government, not the local-
government defendant in that case. See Part III.D.2, supra. Bingham and How-
ard couldn’t have been clearer that they sought to extend the federal protec-
tions of the Takings Clause to local governments. See id. Indeed, we doubt
the action brought in Barron itself would have satisfied Monell’s policy-or-
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22-12041 Opinion of the Court 59

The gap between § 1983 liability for a county’s taking and a

county’s liability for the same taking under the Takings Clause
leaves a substantial class of plaintiffs who can’t recover “just com-
pensation” under § 1983. Compare Ramirez de Arellano, 724 F.2d at
151 (describing takings liability as “a concept akin to, though not
as liberal as, the ‘scope of employment’ test for application of the
doctrine of respondeat superior in private law”), with Monell, 436 U.S.
at 691 (“[A] municipality cannot be held liable under § 1983 on a
respondeat superior theory.”).22 As Fulton’s own case shows, any
time officers seize property as part of a lawful investigation but the
government later fails to return it for unknown reasons, § 1983 does
not afford a “just compensation” remedy. Cf. Jenkins v. United States,
71 F.4th 1367, 1373–74 (Fed. Cir. 2023) (recognizing “just

custom requirement. See Barron, 32 U.S. at 243–44 (syllabus) (summarizing

that the plaintiff’s injuries were caused by flooding from streams of water di-
verted by the city “partly by adopting new grades of streets, and partly by the
necessary results of paving, and partly by mounds, embankments and other
artificial means” that don’t appear to have resulted from an officially adopted
policy or custom as Monell and its progeny construe the term).
22 Amicus Institute for Justice contends that Monell’s policy-or-custom require-
ment does not apply to takings claims because “[a] just-compensation claim
necessarily sounds against governmental entities.” But Monell expressly con-
sidered that takings actions would proceed under § 1983, yet it carved out no
exception to its policy-or-custom requirement for takings violations. See Mo-
nell, 436 U.S. at 686–87, 694. Nor does anything in the text of § 1983 suggest a
special carveout for takings violations. See 42 U.S.C. § 1983. And almost all
constitutional rights are asserted against state action. See, e.g., U.S. CONST.
amends. I; II; III; IV; V; VI; VII; VIII; XIV, § 1; XV, § 1; IX; XXIV, § 1; XXVI, §
1.
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60 Opinion of the Court 22-12041

compensation” liability where officers do not return seized prop-

erty at the conclusion of an investigation); Frein v. Pa. State Police,
47 F.4th 247, 252–53 (3d Cir. 2022) (same).

Congress can’t prescribe an exclusive remedy for uncompen-

sated takings that is more restrictive than the Takings Clause’s
guarantee of “just compensation.”23 Its authority to enact § 1983
comes from Section 5 of the Fourteenth Amendment, which au-
thorizes Congress “to enforce, by appropriate legislation” the
Amendment. See Monell, 436 U.S. at 665. But that provision gives
“no power to restrict, abrogate, or dilute” the intrinsic protections
of the Bill of Rights. See Katzenbach v. Morgan, 384 U.S. 641, 651
n.10 (1966). And the Takings Clause mandates compensation for
litigants who have suffered takings by government employees act-
ing within the normal scope of their duties, whether under official
local policy or not. So some other federal mechanism must allow
litigants who have suffered takings by their local government to re-
cover “just compensation.”

23 We also emphasize another way § 1983 offers an incomplete remedy for

takings violations: The statute does not allow suits against state governments
for takings because it doesn’t abrogate their sovereign immunity. See Robinson
v. Ga. Dep’t of Transp., 966 F.2d 637, 640 (11th Cir. 1992); Part III.D.4, infra
(explaining the doctrine of sovereign immunity does not bar a direct takings
action). As a statutory cause of action, a § 1983 suit could move forward
against state governments only if Congress abrogated their immunity, which
Congress did not. See Quern v. Jordan, 440 U.S. 332, 341 (1979). So there is no
federal statutory damages remedy for takings by a state.
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22-12041 Opinion of the Court 61

The other federal remedy that might apply is equitable re-

lief. See Ex Parte Young, 209 U.S. 123 (1908). In the context of a
takings claim, equitable relief would be an order enjoining the gov-
ernment from taking or possessing the disputed property, requir-
ing the government to leave the property in the possession of its
owner. See First English, 482 U.S. at 319. But the Supreme Court
has already recognized that equitable relief is inadequate because
it does not allow for recovery of the rental value of property that
the government temporarily possesses. See id. Nor does it offer
any remedy in a case like the one here, where the government al-
ready took property and its location is unknown—or worse, its
value is destroyed. At bottom, “just compensation” is a form of
“legal relief,” see City of Monterey, 526 U.S. at 710–11, so a system for
the recovery of legal relief necessarily must exist to fulfill the prom-
ise of “just compensation.”
One final remedy could be sufficient under the Fifth Amend-
ment: relief that state-law causes of action authorize. As we’ve
mentioned, the Supreme Court has said that “constitutional con-
cerns do not arise when property owners have other ways to seek
just compensation,” including state-law vehicles. Id. at 292. But we
have no evidence, and some doubts, that all states permit actions
to recover “just compensation” for personal property loss, like
horses. Cf. Raylu Enters., Inc. v. City of Nobesville, 205 N.E.3d 260,
264 (Ind. Ct. App. 2023) (rejecting an argument that Indiana’s in-
verse-condemnation actions allow for the recovery of compensa-
tion for personal property taken); Holmes Protection of Pittsburgh,
Inc. v. Port Auth. of Allegheny Cnty., 495 A.2d 630, 633 (Pa. Commw.
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62 Opinion of the Court 22-12041

Ct. 1985) (holding that an inverse-condemnation action could not

be sustained where there was a taking of personal but no real prop-
erty); Vaughn v. City of Muskogee, 359 P.3d 192, 196 n.1 (Okla. Civ.
App. 2015) (refusing to opine on whether a plaintiff can bring an
inverse-condemnation action for a taking of personal property un-
related to real property); Allianz Global Risks U.S. Ins. Co. v. State, 161
N.H. 121, 126 (2010) (declining to address whether inverse-con-
demnation actions are cognizable for loss of personal property);
WIS. STAT. § 32.19(3)(a) (2025) (capping compensation for losses to
personal property from condemnation “at an amount equal to the
reasonable expenses that would have been required to relocate such
property”).
In Georgia, where Fulton is, to our knowledge, the state su-
preme court has not ruled on the issue. See Pribeagu v. Gwinnett
County, 785 S.E.2d 567, 571 (Ga. Ct. App. 2016). And it wasn’t until
2016 that a single panel of the intermediate appellate court in the
state, reversing a lower court on the issue, found personal property
damage recoverable in an inverse condemnation action.24 Id. That
doesn’t offer assurances that all inverse-condemnation actions al-
low recovery of personal property.

24We do note, however, that other panels seemed to take it for granted that
compensation could be awarded for personal property takings. See, e.g., How-
ard v. Gourmet Concepts Intern, Inc., 529 S.E.2d 406, 410 (Ga. Ct. App. 2000)
(“Personal injury, however, for purposes of inverse condemnation does not
constitute personal property that can be taken.”); Rutherford v. DeKalb County,
651 S.E.2d 771, 774 (Ga. Ct. App. 2007) (same).
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22-12041 Opinion of the Court 63

Plus, we’ve noted that Georgia requires “[a]ll claims against

counties [to] be presented within 12 months after they accrue or
become payable or the same are barred . . . .” GA. CODE ANN. § 36-
11-1 (2025). And it’s too late now for Fulton to comply with that
requirement. But a direct action under the Takings Clause includes
no such limitation. So Georgia’s state remedy is narrower than the
direct cause of action under the Takings Clause. 25

25 The Dissent takes issue with our observation that Georgia’s notice require-
ment makes the state’s inverse-condemnation action narrower than the Tak-
ings Clause directly provides. See Diss. Op. at 33. It warns that our logic de-
mands that any procedural constraint on a constitutional action unconstitu-
tionally narrows it. Id. But the Dissent misconstrues our point. The problem
is that Georgia, a state, unilaterally imposed this requirement on a remedy that
the federal Constitution guarantees. See Knick, 588 U.S. at 194 (rejecting that
a Fifth Amendment claim could be contingent on plaintiffs pursuing state pro-
cedures). We agree with the Dissent that Congress may impose reasonable
procedural rules on the adjudication of takings claims to ensure the efficient
administration of justice. See Diss. Op. at 32–33. We see a problem only if
Congress attempts to add a substantive constraint on the scope of the Takings
Clause, wholesale barring a class of litigants entitled to relief. That’s the result
under § 1983 claims against local governments, as Monell construes the statute.
We similarly would take issue if Congress were to adopt a procedural rule so
unreasonably restrictive as to unfairly prevent takings claimants from having
their day in court. See U.S. CONST. amend. XIV, § 5 (authorizing Congress “to
enforce, by appropriate legislation” the protections of the Fourteenth Amend-
ment, which include the incorporated Takings Clause (emphasis added)). But
we think the Constitution permits Congress, for example, to set a reasonable
statute of limitations for takings claims with its authority “to enforce” the
Fourteenth Amendment. See id. And nobody is suggesting that the Federal
Rules of Civil Procedure don’t apply to takings claims. Similarly, state courts
have no obligation to dispense with their regular procedural rules when adju-
dicating takings claims. See DeVillier, 601 U.S. at 292. But they can’t be the
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64 Opinion of the Court 22-12041

At bottom, “[t]he availability of any particular compensa-

tion remedy, such as an inverse condemnation claim under state
law, cannot infringe or restrict the property owner’s federal consti-
tutional claim . . . .” Knick, 588 U.S. at 191. We reiterate “[t]he fact
that the State has provided a property owner with a procedure that
may subsequently result in just compensation cannot deprive the
owner of his Fifth Amendment right to compensation under the
Constitution, leaving only the state law right.” Id. A federal right
guarantees a federal remedy not dependent on the whims of states.
The Dissent suggests one other remedy that it claims Fulton
could have availed himself of: suits against the officers who con-
ducted the takings under § 1983 or state law. Diss. Op. at 3–6, 32.
But even the Dissent recognizes why that doesn’t offer Fulton re-
lief—officers receive qualified immunity under federal law and

exclusive forum for this constitutional remedy if they have procedures that nar-
row the availability of that remedy without any congressional blessing. Cf. id.
at 293 (remanding only because petitioner had a cause of action under state
law, and the state promised not to oppose amendment of his complaint to
pursue it); Knick, 588 U.S. at 194. That’s because the Takings Clause promises
a federal remedy independent of the whims of states. See Knick, 588 U.S. at
194; Part III.D.1 & 2, supra. And only Congress can impose ultimate proce-
dural bars because the Fourteenth Amendment charges Congress specifically
with its enforcement. See U.S. CONST. amend. XIV, § 5. But, here, because of
Monell, the only time Fulton could have conceivably sought relief in any court
would have been in state court within the one-year deadline Georgia alone
set. GA. CODE ANN. § 36-11-1 (2025). So Georgia, as the exclusive forum, has
unilaterally and unconstitutionally imposed a procedural bar on Fulton’s tak-
ings claim—assuming Fulton could have ever sought relief in Georgia courts,
which remains unclear. Cf. Pribeagu, 785 S.E.2d at 571.
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22-12041 Opinion of the Court 65

official immunity under Georgia law. See id. at 5–6 (citing Griffith v.
Robinson, 884 S.E.2d 532, 534–35 (Ga. Ct. App. 2023) and then citing
Lee v. Ferraro, 284 F.3d 1188, 1193–94 (11th Cir. 2002)). The parties
have not presented, and we are not aware of, any clearly established
law in this circuit to overcome qualified immunity in a § 1983 action
against the relevant officers that took Fulton’s horses. Cf. Gilmore v.
Ga. Dep’t of Corr., No. 23–10343, 2025 WL 1911728, at *8 (11th Cir.
July 11, 2025) (en banc) (articulating the standard for overcoming
qualified immunity under our precedents.). But the Takings Clause
demands the provision of “just compensation” regardless of any
officer immunity. See U.S. CONST. amend. V. Plus, just as funda-
mentally, once an officer commits a taking, it’s his government, not
necessarily the officer himself, that the Constitution puts on the
hook for that compensation. See Knick, 588 U.S. at 189 (“If a local
government takes private property without paying for it, that gov-
ernment has violated the Fifth Amendment . . . .”).
At the end of the day, both we and the Dissent agree that
Fulton currently has access to neither federal nor state relief. Mo-
nell categorically bars him from ever suing his local government in
federal court for the compensation it owes him. And Georgia law
does not allow him to seek compensation in its courts today. But
unlike the Dissent, we don’t think the Constitution authorizes the
conclusion that he must go remediless. The Constitution doesn’t
promise “just compensation” only to allow a local government’s
whim not to provide it.
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66 Opinion of the Court 22-12041

Because no other constitutionally adequate remedy for tak-

ings of personal property by local governments exists here, we hold
that the Takings Clause directly provides for judicial relief.
4. Sovereign immunity does not bar a direct cause of ac-
tion under the Takings Clause.
The Dissent disagrees with our textual, structural, and his-
torical analysis. Besides concluding that the Takings Clause’s guar-
anteed damages remedy doesn’t give a litigant the right to sue for
damages, it argues that sovereign immunity bars a direct takings
cause of action. Diss. Op. at 15–19. We agree that it would be odd
for the Constitution to provide an outside check on Congress only
to require Congress to waive its sovereign immunity to enforce that
limitation. But we disagree that sovereign immunity has relevance
here. Unlike the Dissent, we think the Takings Clause has bite.
To start, sovereign immunity can’t undermine a cause of ac-
tion that the Constitution expressly makes a right. See PennEast
Pipeline Co., LLC v. New Jersey, 594 U.S. 482, 508 (2021) (“[A] State
may be sued if it has agreed to suit in the ‘plan of the Convention,’
which is shorthand for ‘the structure of the original Constitution
itself.’” (citation omitted)). That’s why the Supreme Court has
been clear that when “there [is] no remedy by which [a] plaintiff
could have recovered compensation for [a] taking . . . ,” he may at
least sue to recover his taken property under a “constitutional ex-
ception to the doctrine of sovereign immunity . . . .” Malone v.
Bowdoin, 369 U.S. 643, 647–48 (1962) (quoting Larson v. Domestic &
Foreign Commerce Corp., 337 U.S. 682, 696–97 (1949)) (internal
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22-12041 Opinion of the Court 67

quotation marks omitted); see also First English, 482 U.S. at 316 n.9
(rejecting arguments that “principles of sovereign immunity” pre-
vent recognition that the Fifth Amendment is a “remedial provi-
sion”); Lee, 106 U.S. at 221 (asserting if the government can defeat
a takings claim by invoking sovereign immunity “it sanctions a tyr-
anny which has no existence in the monarchies of Europe, nor in
any other government which has a just claim to well-regulated lib-
erty and the protection of personal rights”).
After all, sovereign immunity cannot defeat the other textu-
ally guaranteed remedy in the Constitution: the writ of habeas cor-
pus. See U.S. CONST. art. I, § 9, cl. 2; Lee, 106 U.S. at 218, 220 (com-
paring the power to issue a writ of habeas corpus to judicially en-
forcing the Takings Clause). Otherwise, the government could de-
tain an individual without ever being required to undergo judicial
review, and the writ of habeas corpus would be effectively sus-
pended in violation of the Constitution. See U.S. CONST. art. I, § 9,
cl. 2; Lee, 106 U.S. at 220.
It’s true, as the Dissent points out, see Diss. Op. at 18, that a
takings suit brought under §1983 is subject to a sovereign-immunity
defense. See Robinson v. Ga. Dep’t of Transp., 966 F.2d 637, 640 (11th
Cir. 1992). But that’s because § 1983 is a statutory cause of action.
And a statutory cause of action abrogates a state government’s im-
munity only if Congress intended it to, which Congress did not.
See Quern v. Jordan, 440 U.S. 332, 341 (1979). But the Dissent offers
no binding authority that a cause of action directly from the Consti-
tution can be restricted by sovereign immunity. If sovereign
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68 Opinion of the Court 22-12041

immunity applied to a constitutional cause of action, that constitu-

tional cause of action would offer no protection against a fickle leg-
islature.
And even if we were to agree with the Dissent that sovereign
immunity generally bars takings causes of action—as should be
clear by now, we don’t—immunity has no place here. Fulton seeks
to sue a local government. And “[u]nder the traditional Eleventh
Amendment paradigm . . . . counties and similar municipal corpo-
rations are not” entitled to sovereign immunity. United States ex rel.
Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598, 601 (11th Cir.
2014). So Fulton County has no sovereign immunity, and the doc-
trine poses no bar to relief in this suit.
At the end of the day, we read the words of the Takings
Clause to mean what they say. When a government takes private
property, it’s on the hook for “just compensation.” We find com-
mon ground with the Dissent by heeding the words of Chief Jus-
tice Marshall: “[W]e must never forget, that it is a constitution we
are expounding.” Diss. Op. at 19 (quoting McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 407 (1819)). As Marshall explained, we must
give “a fair construction of the whole instrument.” McCulloch, 17
U.S. at 406. And a “fair construction” recognizes that when the
Constitution grants an express right to damages, the American peo-
ple have a right to recover them.
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22-12041 Opinion of the Court 69

5. The Takings Clause’s cause of action stands inde-

pendent of “implied” Bivens actions.
One final note: some, including the Dissent, have suggested
that a direct cause of action under the Takings Clause would run
into the headwinds of the Supreme Court’s Bivens jurisprudence.
See, e.g., DeVillier, 63 F.4th at 420 (Higginson, J., concurring in denial
of rehearing en banc); Diss. Op. at 8–10. They note that the prac-
tice of “implying constitutional causes of action” against federal
officials, which began with Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), is “a disfavored judi-
cial activity.” DeVillier, 63 F.4th at 420 (Higginson, J., concurring in
denial of rehearing en banc) (quoting Egbert v. Boule, 596 U.S. 482,
491 (2022)). But most respectfully, we think closer scrutiny reveals
that the Court’s Bivens guidance is of no relevance to this case.
We are, of course, aware that the Supreme Court, in dicta,
has pointed out that “there is no express cause of action under the
Takings Clause . . . .” Me. Cmty. Health Options, 590 U.S. 296, 323
n.12 (2020). But the Supreme Court has been equally clear that its
“precedents do not cleanly answer the question whether a plaintiff
has a cause of action arising directly under the Takings Clause.”
DeVillier, 601 U.S. at 292.
And the Court has also recognized that plaintiffs may sue to
acquire “just compensation” from the federal government under
the Tucker Act. See Me. Cmty. Health Options, 590 U.S. at 323 n.12.
That’s so, even though the Tucker Act “does not create substantive
rights.” Id. at 322 (citation and internal quotation marks omitted).
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70 Opinion of the Court 22-12041

Instead, “[a] plaintiff relying on the Tucker Act must premise her
damages action on other sources of law . . . .” Id. (citation and in-
ternal quotation marks omitted). Those sources can be constitu-
tional obligations because the act permits the Court of Federal
Claims to hear “claim[s] against the United States founded . . . upon
the Constitution . . . .” 28 U.S.C. § 1491(a)(1). In essence, “[t]he
Tucker Act . . . is itself only a jurisdictional statute . . . .” United
States v. Testan, 424 U.S. 392, 398 (1976). So claims under the Tucker
Act proceed with the Takings Clause directly supplying the cause
of action against federal officials. The Tucker Act gives the Court
of Federal Claims the right to put on the show, but it doesn’t grant
litigants a ticket.
Yet at the very same time that the Supreme Court has
acknowledged the viability of takings claims under the Tucker Act,
it has found only three causes of actions under Bivens. See Egbert,
596 U.S. at 490–91 (describing how the Court has only recognized
Bivens actions under the Fourth Amendment for excessive force by
federal agents, under the Fifth Amendment for workplace discrim-
ination against federal employees, and under the Eighth Amend-
ment for inadequate care to federal prisoners). But it has not listed
the just-compensation cause of action as one of them.26 See id.

26 Even if we were to conceptualize a Tucker Act takings action as a Bivens

action, it’s not clear what relevance the Bivens framework has for recognizing
a constitutional cause of action against a local government. Every Bivens case
the Court has considered has been against the federal government. See Egbert,
596 U.S. at 486, 490–91 (collecting cases). The rights implicated are directly in
the Founding’s Bill of Rights, not incorporated through the Fourteenth
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22-12041 Opinion of the Court 71

We think that shows that the Takings Clause cause of action

stands independent of Bivens. So for example, it is irrelevant that
the Court has instructed that “a court may not fashion a Bivens rem-
edy if Congress already has provided, or has authorized the Exec-
utive to provide, an alternative remedial structure.” Id. at 493 (in-
ternal quotation marks and citation omitted).
The Takings Clause’s independence from Bivens makes
sense. “The cause of action for takings claims pre-dated Bivens by
over a hundred years . . . . It therefore cannot be dismissed as ‘judi-
cial genesis’ of the same sort that begat Bivens.” DeVillier, 63 F.4th
at 440 (Oldham, J., dissenting from denial of rehearing en banc); see
also O’Connor v. Eubanks, 83 F.4th 1018, 1029 (Thapar, J., concurring)
(“Perhaps our circuit should also allow suits against officials directly
under the Takings Clause. There’s some historical support for this
approach . . . . The right to just compensation shouldn’t depend on
any statute—the Constitution requires it.”). We “create” nothing
by recognizing it. See Egbert, 596 U.S. at 490 (describing Bivens as
“creat[ing] a cause of action” (internal quotation marks and cita-
tion omitted)). We instead have read text that mandates monetary
damages and reviewed a history supporting a guaranteed right to
sue. And because the Court has already recognized a direct cause
of action against federal officials inherent in the Takings Clause, its

Amendment birthed during a separate historical period. See id. These differ-
ences may alter the appropriate test to assess claims raised against local gov-
ernments. And in any case, as we’ve explained, Congress cannot narrow the
scope of the expressly guaranteed “just compensation” remedy through legis-
lation.
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72 Opinion of the Court 22-12041

own precedents suggest it must extend that protection against state

and local governments. Cf. Timbs v. Indiana, 586 U.S. 146, 154 (2019)
(“[W]hen a Bill of Rights protection is incorporated, the protection
applies identically to both the Federal Government and the States.”
(internal quotation marks and citation omitted)).
We further recognize the limited practical effect of our de-
cision today. Litigants are still likely to proceed under § 1983 where
it is available because it authorizes consequential damages and at-
torney’s fees. See City of Monterey, 526 U.S. at 749 n.10 (Souter, J.,
concurring in part & dissenting in part) (“Respondents in this [§
1983] case sought damages for the fair market value of the prop-
erty, interim damages for a temporary taking, holding costs, inter-
est, attorney’s fees, costs, and other consequential damages.”); 42
U.S.C. § 1988(b) (authorizing the award of attorney’s fees in § 1983
suits). Only plaintiffs who don’t already have a recognized cause of
action are likely to sue directly under the Takings Clause without
access to these additional damages.
Still, the Founders included the “just compensation” remedy
as one of only two remedies the Constitution expressly identifies.
And they meant for those remedies to be meaningful and accessi-
ble—regardless of legislative action or inaction. So today we pay
heed to the text, structure, and history of the Fifth and Fourteenth
Amendments and of the Constitution more broadly and recognize
a direct cause of action under the Takings Clause.
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22-12041 Opinion of the Court 73

IV. CONCLUSION
Fulton is not trying to receive relief from a past injury. He
alleges that Fulton County, to this day, is violating his constitutional
rights. That’s because, under his allegations, the County took his
property and ever since has had an active obligation under the Fifth
Amendment to pay him “just compensation.” We don’t think the
Constitution’s promise of “just compensation” is an empty prom-
ise. It doesn’t taunt the American public like the Greek gods did
Tantalus. So Fulton can bring an action directly under the Takings
Clause. And because he may do so, amendment of his complaint
is not futile. For these reasons, we vacate the district court’s order
and remand for further proceedings consistent with this opinion.
VACATED and REMANDED.
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22-12041 WILLIAM PRYOR, C.J., dissenting 1

WILLIAM PRYOR, Chief Judge, dissenting:

In the more than 230 years since the Bill of Rights was rati-
fied, neither the Supreme Court nor this Court nor our predecessor
circuit has ever held that the Takings Clause of the Fifth Amend-
ment creates an implied right of action for damages against a gov-
ernment—federal, state, or local—and for good reason. The text
and history of the Clause, the structure of the Constitution, and
Supreme Court precedent make clear that we should not imply a
right of action. But the majority ignores that history, usurps the
role of Congress, and invents a right of action directly under the
Constitution against a county even though property owners today
have more ways to vindicate their constitutional right to just com-
pensation than ever before. These ample alternatives undermine
any need to imply a constitutional right of action, yet the majority
“overhaul[s] constitutional doctrine” by ignoring them. Ann Wool-
handler, Julia D. Mahoney & Michael G. Collins, Takings and Implied
Causes of Action, 2023–2024 CATO SUP. CT. REV. 249, 250 (2024). I
would instead follow the Supreme Court’s lead in Knick v. Township
of Scott, 139 S. Ct. 2162 (2019), and DeVillier v. Texas, 144 S. Ct. 938
(2024), and hold that the statutory action for federal civil-rights vi-
olations, 42 U.S.C. § 1983, and state law provide adequate remedies
for takings by local governments. Because Fulton failed to pursue
his many federal and state remedies against proper parties in a
timely manner and because we have no business creating a consti-
tutional remedy for him, I respectfully dissent.
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2 WILLIAM PRYOR, C.J., dissenting 22-12041

I. BACKGROUND
Although the majority describes the basic facts of this appeal
well enough, it fails to explain the many paths Brandon Fulton did
not take to vindicate his takings claim. Instead, it assumes that be-
cause “Fulton seeks a plan B” to vindicate his constitutional right
to just compensation, we must create one for him. Majority Op. at
3. But, as the history of this litigation and the litany of remedies
available establish, the many alternative paths that Fulton could
have taken obviate any need to create a new remedy for him.
Fulton County Animal Services officers arrested Fulton for
felony cruelty to animals and seized seven of his horses on April 22,
2017. On April 5, 2018, Georgia dismissed the felony charges
against Fulton, but County officers did not return his horses or
their equivalent value. Fulton then waited over two years to bring
claims under section 1983 against the Fulton County Board of
Commissioners; Paul L. Howard, Jr., the former District Attorney
for Fulton County; and Rebecca Guinn, the CEO of Lifeline Ani-
mal Project, Inc., the “managing organization” of Fulton County
Animal Services. 42 U.S.C. § 1983. Fulton then voluntarily dis-
missed his claim against Guinn under Federal Rule of Civil Proce-
dure 41(a)(1)(A)(ii). That voluntary dismissal was Fulton’s first
waiver of a potential remedy. The district court also dismissed the
claim against Howard.
The Board also moved to dismiss Fulton’s complaint on the
grounds that it was untimely, that the Board was not an entity ca-
pable of being sued, and that Fulton had failed to allege municipal
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22-12041 WILLIAM PRYOR, C.J., dissenting 3

liability. Fulton responded by moving to amend his complaint by

swapping the Board for Fulton County. He also sought leave to add
an alternative claim against the County for an uncompensated tak-
ing based on the Fifth Amendment. The district court granted the
Board’s motion to dismiss and denied Fulton’s motion to amend as
futile. The district court reasoned that both a claim against the
County under section 1983 and a direct claim under the Takings
Clause would fail because Fulton pleaded no “official policy or
practice,” see Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S.
658, 690–91 (1978), so neither amendment would save Fulton’s
complaint. And the original section 1983 claim against the Board
failed for the same “municipal liability deficiencies.”
Fulton appeals only the denial of his motion for leave to
amend. He concedes that the district court “was right that Monell
. . . bars [his] Takings Clause claim raised through [section] 1983
against Fulton County.” So Fulton admits that he cannot allege that
a policy or custom of the County caused his deprivation. That con-
cession bars our review of the dismissal of his section 1983 claim
against the County—Fulton’s second road-not-taken to remedy his
alleged taking. Yet the majority permits Fulton to sue the County
directly under the Takings Clause without having to prove that any
County policy or custom caused his alleged deprivation.
Fulton also could have availed himself of several other rem-
edies. Under section 1983, he could have sued the officers and any
other persons acting under color of law who seized his horses. See
Hudson v. Palmer, 468 U.S. 517, 537–39 (1984) (O’Connor, J.,
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4 WILLIAM PRYOR, C.J., dissenting 22-12041

concurring) (explaining that although “the Fourth Amendment

does not protect a prisoner against indefinite dispossession[,] . . .
[t]he Due Process and Takings Clauses of the Fifth and Fourteenth
Amendments stand directly in opposition to state action intended
to deprive people of their legally protected property interests”).
Under Georgia law, Fulton also could have sued those individuals
for conversion to obtain damages and detinue or replevin to obtain
possession of his horses. See GA. CODE ANN. § 51-10-1; Mims v. Ex-
clusive Ass’n Mgmt., Inc., 906 S.E.2d 799, 802 (Ga. Ct. App. 2024) (ex-
plaining that the statute “embodies the common law action of tro-
ver and conversion”); Decatur Auto Ctr. v. Wachovia Bank, N.A., 583
S.E.2d 6, 7 (Ga. 2003) (“Conversion consists of an unauthorized as-
sumption and exercise of the right of ownership over personal
property belonging to another . . . [or] an act of dominion over the
personal property of another inconsistent with his rights.” (citation
and internal quotation marks omitted)); Md. Cas. Ins. Co. v. Welchel,
356 S.E.2d 877, 879 (Ga. 1987) (“Trover in Georgia embraces the
common-law actions of trover, detinue, and replevin. . . .
[R]eplevin was an action to recover specific chattels unlawfully
taken and wrongfully withheld; while the action of detinue was al-
lowable to recover specific chattels wrongfully retained, though
lawfully acquired.” (alteration adopted) (citation and internal quo-
tation marks omitted)); Fla. State Hosp. for the Insane v. Durham Iron
Co., 21 S.E.2d 216, 218 (Ga. 1942) (stating that individual-capacity
tort suits are “generally maintainable” under Georgia law, includ-
ing suits “to recover property wrongfully withheld from the true
owner, or to recover damages . . . in tort for an injury to person or
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22-12041 WILLIAM PRYOR, C.J., dissenting 5

property”). And under Georgia law, he could have sued the County
for inverse condemnation. See Bowers v. Fulton County, 146 S.E.2d
884, 889–90 (Ga. 1966) (concluding that the Georgia Constitution
forbids the uncompensated “taking or damaging . . . of any species
of property,” including “things real and personal owned”); Duffield
v. DeKalb County, 249 S.E.2d 235, 237 (Ga. 1978) (“[A] county is liable
for inverse condemnation of property under [the Georgia] Consti-
tution.”); see also Pribeagu v. Gwinnett County, 785 S.E.2d 567, 570–
71 (Ga. Ct. App. 2016) (holding that an inverse-condemnation ac-
tion for damage to personal property was cognizable).
The majority’s assertion that “Congress has not provided
[Fulton] with a cause of action to secure ‘just compensation’ in fed-
eral court” is absurd. Majority Op. at 3. Fulton had access to both
federal and state courts to seek just compensation and more. An
action under section 1983 can be filed in either federal or state
court, and the district court would have supplemental jurisdiction
over any claim under state law that forms part of the “same case or
controversy.” 28 U.S.C. § 1367(a). Had he succeeded in securing re-
lief under section 1983, Fulton also could have recovered attorney’s
fees. See 42 U.S.C. § 1988(b). Whether any of Fulton’s hypothetical
claims might have succeeded is beyond the scope of this appeal. For
example, we have no occasion to consider whether a claim against
an individual officer could overcome official or qualified immunity.
See Griffith v. Robinson, 884 S.E.2d 532, 534–35 (Ga. Ct. App. 2023)
(discussing state official immunity); Lee v. Ferraro, 284 F.3d 1188,
1193–94 (11th Cir. 2002) (discussing qualified immunity). But one
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6 WILLIAM PRYOR, C.J., dissenting 22-12041

thing is clear: Fulton had many remedies, federal and state, to vin-
dicate his takings claim.
II. DISCUSSION
To explain the majority’s errors, I divide my discussion in
three parts. First, I explain why neither the text nor structure of the
Constitution supports the creation of an implied right of action un-
der the Takings Clause. Second, I explain how our constitutional
history also leads to that conclusion. Third, I explain that sec-
tion 1983 and Georgia law provide Fulton adequate remedies that
counsel against our creation of an implied right of action.
A. Neither the Constitutinal Text nor Structure Supports Creating
an Implied Right of Action under the Takings Clause.
The text of the Takings Clause provides in its entirety, “nor
shall private property be taken for public use, without just compen-
sation.” U.S. CONST. amend. V. “[T]his provision does not prohibit
the taking of private property, but instead places a condition on the
exercise of that power.” First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S. 304, 314 (1987). If a gov-
ernment “pa[ys] for the property . . . no constitutional injury” will
arise “from the taking alone.” City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 710 (1999). In other words, the text of
the Takings Clause imposes an obligation on the government to pro-
vide payment for any property it takes. The enforcement of that
obligation is another matter.
To be sure, “in the event of a taking, the compensation rem-
edy is required by the Constitution.” First English, 482 U.S. at 316.
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22-12041 WILLIAM PRYOR, C.J., dissenting 7

But as the Supreme Court acknowledged in Maine Community

Health Options v. United States, the text of the Takings Clause does
not provide an express cause of action to vindicate that right. 140
S. Ct. 1308, 1328 n.12 (2020). So “any cause of action in the Takings
Clause . . . if it exists, is implied.” DeVillier v. Texas, 63 F.4th 416, 420
(5th Cir. 2023) (Higginson, J., concurring in the denial of rehearing
en banc). The Supreme Court has explained that “just compensa-
tion is, like ordinary money damages, a compensatory remedy . . .
traditionally associated with legal relief.” Del Monte Dunes, 526 U.S.
at 710–11 (citation and internal quotation marks omitted). But
recognition of a compensatory remedy does not necessarily mean
that the Constitution directly supplies a cause of action to pursue
the remedy. Cf. Jud Campbell, Determining Rights, 138 HARV. L. REV.
921, 923, 981 (2025) (explaining that “some rights were determined
. . . by common law” and “enumerating rights in constitutional text
did not automatically transform them into determinate legal ob-
jects”). Even where the Constitution enumerates “legally determi-
nate rights”—rights whose contours were well-defined when they
were enumerated—it enshrined and clarified “the content of exist-
ing rights” and “rarely created rights out of whole cloth.” Id. at 944,
974 n.370 (emphasis added); cf. William Baude, Jud Campbell & Ste-
phen E. Sachs, General Law and the Fourteenth Amendment, 76 STAN.
L. REV. 1185, 1191 (2024) (making a similar argument that Sec-
tion One of the Fourteenth Amendment “secured but did not con-
fer” rights).
“Constitutional rights do not typically come with a built-in
cause of action to allow for private enforcement in courts.”
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8 WILLIAM PRYOR, C.J., dissenting 22-12041

DeVillier, 144 S. Ct. at 943 (citing Egbert v. Boule, 142 S. Ct. 1793,
1802–03 (2022)). Instead, rights-holders rely on common-law rem-
edies and statutory causes of action to supply the procedural vehi-
cles to enforce their rights. See, e.g., Del Monte Dunes, 526 U.S. at 710
(explaining that “in a strict sense” the section 1983 suit was not a
suit for “just compensation per se but rather damages for the un-
constitutional denial of such compensation”); First English, 482 U.S.
at 308 (explaining that plaintiffs sued under a California statute and
in inverse condemnation and tort). That the Takings Clause guar-
antees a substantive right to monetary compensation does not
mean that it also creates a procedural vehicle to vindicate that right.
Cf. DeVillier, 144 S. Ct. at 943 (“Texas does not dispute the nature of
the substantive right to just compensation[,] . . . only . . . the proce-
dural vehicle by which a property owner may seek to vindicate that
right.”); Alexander v. Sandoval, 532 U.S. 275, 290 (2001) (“[S]ome re-
medial schemes foreclose a private cause of action to enforce even
those statutes that admittedly create substantive private rights.”
(emphasis added)).
“[I]n all but the most unusual circumstances, prescribing a
cause of action is a job for Congress, not the courts.” Egbert, 142 S.
Ct. at 1800. The Supreme Court, in Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, “held that it had authority to
create ‘a cause of action under the Fourth Amendment.’” Id. at
1802 (quoting 403 U.S. 388, 397 (1971)). But since then, the judicial
creativity used to imply causes of action has fallen out of favor. See
id.; Hernández v. Mesa, 140 S. Ct. 735, 742–43 (2020). Today, “[i]n
both statutory and constitutional cases, our watchword is caution.”
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22-12041 WILLIAM PRYOR, C.J., dissenting 9

Hernández, 140 S. Ct. at 742. The Court has explained that it has
“come ‘to appreciate more fully the tension between’ judicially cre-
ated causes of action and ‘the Constitution’s separation of legisla-
tive and judicial power.’” Egbert, 142 S. Ct. at 1802 (quoting Hernán-
dez, 140 S. Ct. at 741–42). As a result, it has declared that “creating
a cause of action is a legislative endeavor.” Id. And we have gotten
the message, Johnson v. Terry, 119 F.4th 840, 847–52 (11th Cir. 2024)
(describing precedents “drastically restrict[ing]” Bivens’s “reach”)—
until today.
The majority contends that the Bivens precedents do not
bear on the question before us because the Takings Clause is some-
how different from other provisions of the Bill of Rights. Majority
Op. at 69–72. But the admonition to adhere closely to the text of
the Constitution in respect of the separation of powers should give
us pause before we construe the Fifth Amendment to create an im-
plied right of action. A constitutional reference to a remedy, with-
out more, does not mean that the Constitution creates a right of
action for that remedy.
Keep in mind too that the short-lived experiment of Bivens
remedies—which the Supreme Court later came to regret, see Her-
nández, 140 S. Ct. at 742–43 (“[I]f the Court’s three Bivens cases had
been decided today, it is doubtful that we would have reached the
same result.” (alterations adopted) (citation and internal quotation
marks omitted)); Goldey v. Fields, No. 24-809, slip op. at 3 (U.S. June
30, 2025) (“For the past 45 years, this Court has consistently de-
clined to extend Bivens to new contexts. We do the same here.”
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10 WILLIAM PRYOR, C.J., dissenting 22-12041

(citation omitted))—involved civil-rights violations committed by

federal, not state, officers. See 403 U.S at 395. The Bivens Court cre-
ated a damages remedy for federal violations because Congress had
not done so. Id. at 397. In his dissenting opinion, Justice Black ar-
gued that the power to create that remedy belonged to Congress,
not the Court, id. at 427–28 (Black, J., dissenting), and that sec-
tion 1983 could serve as “a model” for future legislation should
Congress choose to exercise its power, id. at 429. Yet, the majority
here invents a remedy, under the Fifth Amendment, against a local
government even though Congress created a remedy, under sec-
tion 1983, more than 150 years ago, that remains available to prop-
erty owners today.
Contrary to the majority’s confusion, Majority Op. at 19–20,
Supreme Court precedents that describe the Takings Clause as
“self-executing” do not suggest that the Clause creates an implied
right of action. In Jacobs v. United States, for example, the Supreme
Court explained that a suit for just compensation under the Tucker
Act vindicates a “right to recover . . . guaranteed by the Constitu-
tion.” 290 U.S. 13, 16 (1933). Jacobs considered whether suits under
the Tucker Act for just compensation proceeded under a theory of
implied contract—where interest would not be allowed—or
“rested upon the Fifth Amendment”—where interest would be. Id.
Because the Tucker Act suits “were based on the right to recover
just compensation for property taken by the United States for pub-
lic use,” it did not matter that the United States had not initiated
condemnation proceedings in which the plaintiff challenged the
taking. Id. “The form of the remedy did not qualify the right.” Id.
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22-12041 WILLIAM PRYOR, C.J., dissenting 11

The United States had to pay for the taking, including interest, even
without an additional promise to pay. Id. So the Court held that the
Fifth Amendment required no further action to impose an obliga-
tion on the government. Id. The Takings Clause imposed a “self-
executing” obligation. See Self-Executing, BLACK’S LAW DICTIONARY
(12th ed. 2024). Yet the Tucker Act waived sovereign immunity and
gave federal courts jurisdiction over an action to enforce that obli-
gation, so the Act, not the Fifth Amendment, supplied the proce-
dural vehicle to enforce the self-executing constitutional right. Ja-
cobs, 290 U.S. at 15 (stating that petitioners sued “under the Tucker
Act”).
In First English, the Supreme Court held that a property
owner in a state judicial proceeding was entitled to pursue compen-
sation for an alleged “temporary” regulatory taking. 482 U.S. at 308,
310 (internal quotation marks omitted). The Court held that, due
to the “self-executing character” of the Takings Clause, the prop-
erty owner was entitled to seek compensation even if the property
was no longer burdened by the regulation. Id. at 315–19, 322 (cita-
tion and internal quotation marks omitted). Compensation was
owed when the property was taken. Id. at 319, 321. And invalidating
the regulation would not provide compensation for any interim vi-
olation. Id. at 321. But the Court did not hold or even hint that the
property owner had an implied right of action under the Takings
Clause for any temporary taking. The property owner instead pro-
ceeded by inverse condemnation under California law and sought
relief in tort and under a provision of the California Code. Id. at
308.
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12 WILLIAM PRYOR, C.J., dissenting 22-12041

In Knick, a property owner sued a municipality for violating

the Takings Clause. 139 S. Ct. at 2168. The Court described how
section 1983 also allows property owners to enforce the “self-exe-
cuting” Takings Clause against state officials in federal court: “[a]
property owner has an actionable Fifth Amendment takings claim
when the government takes his property without paying for it.” Id.
at 2167. When the taking occurs, the owner’s constitutional right
has been violated, and he may use whatever cause of action Con-
gress has provided to vindicate that right. See id. at 2168 (“[W]hen
the government takes his property without just compensation, [the
plaintiff] may bring his claim in federal court under [section] 1983
at that time.”). The Court explained that “the existence of the Fifth
Amendment right . . . allows the owner to proceed directly to fed-
eral court under [section] 1983.” Id. at 2171. Knick held that “be-
cause the violation is complete at the time of the taking, pursuit of
a remedy in federal court need not await any subsequent state ac-
tion. Takings claims against local governments should be handled
the same as other claims under the Bill of Rights.” Id. at 2177. But
the Court again did not hold or even suggest that the Constitution
creates an implied right of action.
None of these decisions held that the “self-executing charac-
ter” of the Takings Clause creates a right of action. Instead, each
precedent makes clear that “self-executing” means only that viola-
tions of the Takings Clause occur as soon as the government fails
to comply with its obligation of just compensation and that just
compensation is the remedy, regardless of the method of its vindi-
cation. And the precedents contemplate three procedural vehicles
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22-12041 WILLIAM PRYOR, C.J., dissenting 13

through which a property owner can vindicate his right to com-

pensation: the Tucker Act, state-law actions, and section 1983.
Indeed, the Supreme Court recently clarified in DeVillier that
repeated acknowledgments of the Takings Clause’s “self-executing
character . . . do not cleanly answer the question whether a plaintiff
has a cause of action arising directly under the Takings Clause.”
144 S. Ct. at 943–44 (citation and internal quotation marks omit-
ted). The Court acknowledged “[i]nstead, constitutional rights are
generally invoked defensively in cases arising under other sources
of law, or asserted offensively pursuant to an independent cause of
action designed for that purpose, see, e.g., 42 U.S.C. § 1983.” Id. at
943. That is, the constitutional right is self-executing even if the
method for remedying its violation is not.
The majority frames the Takings Clause as “a constitutional
unicorn,” unique in its “damages-type remedy” and “‘self-execut-
ing’” nature. Majority Op. at 20–21. But there is scarce evidence
that a “constitutional unicorn” exists. And it would be odd for us to
construe the Takings Clause as so different from its sister provi-
sions as to provide an implied right of action. This unicorn, like
others, is a myth.
Notwithstanding the majority’s suggestion to the contrary,
see Majority Op. at 2, 21–25, even the Suspension Clause, the only
other explicit reference to a remedy in the Constitution, see
RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER’S THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 330 (7th ed. 2015), does
not create a right of action. Instead, it secures the preexisting writ
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14 WILLIAM PRYOR, C.J., dissenting 22-12041

of habeas corpus—a creature of common law that predates and ex-

ists independent of the Constitution, see id. at 1193 & n.1 (citing 3
WILLIAM BLACKSTONE, COMMENTARIES *129–32); see also Boumediene
v. Bush, 553 U.S. 723, 739–42 (2008) (explaining that the writ devel-
oped in English common-law courts before Parliament passed the
Habeas Corpus Act of 1679 to “establish[] procedures for issuing
the writ”)—from legislative suspension, Boumediene, 553 U.S. at
745. But it does not extend the writ “beyond its scope ‘when the
Constitution was drafted and ratified.’” Jones v. Hendrix, 143 S. Ct.
1857, 1871 (2023) (quoting Dep’t of Homeland Sec. v. Thuraissigiam,
140 S. Ct. 1959, 1963 (2020)). Because the Founding generation un-
derstood that the Constitution did not create that remedy for un-
lawful detention, the First Congress promptly granted federal
courts the power to issue writs of habeas corpus in section 14 of
the Judiciary Act of 1789. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat.
73, 81–82. Although this grant of jurisdiction also did not create the
writ of habeas corpus (it already existed), that Congress empowered
inferior federal courts to grant the writ underscores that it did not
understand the Constitution to create a new remedy.
The Takings Clause is similar. The Clause conditions the tak-
ing of property on compensation for it. It does not create a right to
sue. Instead, it guarantees the substantive right of compensation
that is enforced in a separate form of action, like inverse condem-
nation, ejectment, or trespass: if the government takes property, it
will provide just compensation, and should it fail to do so, the prop-
erty owner may use existing forms of action to recover his property
or its value. See Campbell, Determining Rights, supra, at 943–44
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22-12041 WILLIAM PRYOR, C.J., dissenting 15

(explaining that even “[s]pecificatory enumerations” of rights “usu-

ally clarified the content of existing rights that were otherwise
grounded in natural law or custom”).
Construing the Takings Clause to create an implied right of
action would offend the structural premise of sovereign immunity.
The Framers understood that the very “nature of sovereignty”
meant that the United States, though bound by the Constitution,
would “not . . . be amenable to the suit of an individual without its
consent.” THE FEDERALIST No. 81, at 486 (Alexander Hamilton)
(Clinton Rossiter ed., 1961); accord FALLON ET AL., HART AND
WECHSLER, supra, at 877–78; see also United States v. Bormes, 568 U.S.
6, 9–10 (2012) (“Sovereign immunity shields the United States from
suit absent a consent to be sued that is unequivocally expressed.”
(citation and internal quotation marks omitted)). Throughout the
nineteenth century, this understanding required the pursuit of tak-
ings claims through officer suits, tort actions, and private bills. See,
e.g., United States v. Lee, 106 U.S. 196, 206–08, 219–23 (1882) (holding
that although the United States could not be sued, the property
owners could sue for ejectment of federal officers). True, a cause
of action might exist even if barred by sovereign immunity, see Lar-
son v. Domestic & Foreign Com. Corp., 337 U.S. 682, 692–93 (1949), but
a cause of action provided by the Constitution would be ineffectual
without a waiver of that bar by Congress. And it would be odd for
us to conclude that the Constitution created an ineffective right of
action. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS § 4, at 63 (2012) (“The
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16 WILLIAM PRYOR, C.J., dissenting 22-12041

presumption against ineffectiveness ensures that a text’s manifest

purpose is furthered, not hindered.”)
Congress did not generally provide for claims against the
federal government based on the Constitution until it passed the
Tucker Act in 1887. FALLON ET AL., HART AND WECHSLER, supra, at
897–98; see also Bormes, 568 U.S. at 12 (citing Act of Mar. 3, 1887,
ch. 359, 24 Stat. 505 (codified as amended at 28 U.S.C. § 1491(a)(1))).
That Act primarily waived sovereign immunity and vested jurisdic-
tion in the Court of Claims over “any claim against the United
States founded . . . upon the Constitution . . . or upon any express
or implied contract with the United States . . . or for liquidated or
unliquidated damages in cases not sounding in tort.” 28 U.S.C.
§ 1491(a)(1). The Tucker Act was construed to allow claims under
any constitutional provision that “c[ould] fairly be interpreted as
mandating compensation by the Federal Government for the dam-
age sustained.” Eastport S.S. Corp. v. United States, 372 F.2d 1002,
1009 (Ct. Cl. 1967); see also United States v. Testan, 424 U.S. 392, 400
(1976) (adopting that test); Me. Cmty., 140 S. Ct. at 1328 (same). But
the Tucker Act does not supply any substantive right; it relies on
other provisions imposing duties and obligations on the federal
government (like the Takings Clause) to provide the right that can
then be enforced under the Act. See United States v. Navajo Nation,
556 U.S. 287, 290 (2009).
“[T]here cannot be a right to money damages without a
waiver of sovereign immunity, and . . . [not] all substantive rights
of necessity create a waiver of sovereign immunity such that
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22-12041 WILLIAM PRYOR, C.J., dissenting 17

money damages are available to redress their violation.” Testan, 424

U.S. at 400–01. The Takings Clause provides a substantive right to
compensation, but there was not a judicially enforceable right to
money damages against the United States until the Tucker Act
waived sovereign immunity for those claims. Cf. Me. Cmty., 140 S.
Ct. at 1328 n.12 (noting that “Congress enacted the Tucker Act to
‘supply the missing ingredient for an action against the United
States for the breach of monetary obligations not otherwise judi-
cially enforceable’” (alteration adopted) (quoting Bormes, 568 U.S.
at 12)).
Nor does the acknowledgment that the Takings Clause pro-
vides a basis for a damages remedy for an uncompensated taking,
see First English, 482 U.S. at 316 n.9, undermine the presumption of
sovereign immunity. First English—like the authorities it cited—did
not rely on that basis to serve as the cause of action. Id. at 308, 316
322 (concluding that the Takings Clause serves as the basis for
awarding damages under state causes of action and determines the
scope of those damages); see also Kirby Forest Indus., Inc. v. United
States, 467 U.S. 1, 3–7 (1984) (statutory condemnation proceeding);
United States v. Causby, 328 U.S. 256, 267 (1946) (relying on the
Tucker Act); Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299,
302 & n.2 (1923) (statutory right of action under the Lever Act,
ch. 53, § 10, 40 Stat. 276, 279, waiving sovereign immunity); Monon-
gahela Navigation Co. v. United States, 148 U.S. 312, 312–14, 324 (1893)
(noting appeal from condemnation proceeding). Judicial remedies
for takings require a separate right of action, either against an of-
ficer or against the government itself based on a clear waiver of
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18 WILLIAM PRYOR, C.J., dissenting 22-12041

sovereign immunity, to proceed in federal court. See, e.g., Lee, 106

U.S. at 219–23 (permitting ejectment suit against federal officers);
see also Larson, 337 U.S. at 696–97 (explaining that Lee’s “constitu-
tional exception to the doctrine of sovereign immunity” involved a
suit “against federal officers” based on the theory that their “pos-
session of the land was illegal,” so “a suit against them was not a
suit against the sovereign”); PennEast Pipeline Co. v. New Jersey, 141
S. Ct. 2244, 2254–55, 2258–59 (2021) (holding that states consented
to eminent domain actions by the federal government or those with
delegated federal power “in the plan of the Convention”).
Moreover, even if the Takings Clause had waived sovereign
immunity for suits against the federal government, it did not abro-
gate state sovereign immunity. See Ladd v. Marchbanks, 971 F.3d 574,
578–80 (6th Cir. 2020) (holding that there was no Eleventh Amend-
ment immunity waiver for a direct Fifth Amendment takings claim
or a section 1983 takings claim); see also Robinson v. Ga. Dep’t of
Transp., 966 F.2d 637, 640 (11th Cir. 1992) (holding that there was
no waiver in section 1983 takings suit); Williams v. Utah Dep’t of
Corr., 928 F.3d 1209, 1214 (10th Cir. 2019) (same); Bay Point Props.,
Inc. v. Miss. Transp. Comm’n, 937 F.3d 454, 456–57 (5th Cir. 2019)
(similar, but not specifying cause of action). A direct action against
a state government under the Fifth and Fourteenth Amendments
would be barred by the Eleventh Amendment. And the Supreme
Court in DeVillier embraced the sufficiency of state-law remedies
for takings claims against states, instead of implying a federal right
of action that would silently abrogate state immunity. 144 S. Ct. at
944.
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22-12041 WILLIAM PRYOR, C.J., dissenting 19

From this textual and structural analysis, we should draw

two lessons. First, any direct right of action under the Takings
Clause must be implied, not express. Second, the Constitution gen-
erally creates no right of action and contemplates structural barri-
ers to suits against the government, which counsel against implying
a right of action for takings. In the words of Chief Justice Marshall,
“we must never forget, that it is a constitution we are expounding.”
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). There is
no textual or structural reason to think that we should create an
implied right of action for takings of property.
B. The History of the Takings Clause Also Establishes that
It Does Not Create an Implied Right of Action.
The majority focuses on colonial and revolutionary ration-
ales for including the Takings Clause in the Bill of Rights. But even
accepting the majority’s account of that pre-constitutional history,
it fails to answer the question before us. For example, the majority
points to statements from John Jay and James Madison suggesting
that takings claims should be judicially enforceable. See Majority
Op. at 29–31, 36–38. But supporting judicial enforceability does not
necessarily mean endorsing a direct right of action under the Con-
stitution. Nor does it mean that the Founding generation under-
stood the Constitution to create a direct right of action. To the con-
trary, our constitutional history establishes that takings claims de-
pend on external remedies, such as congressional resolution of pri-
vate claims against the government and common-law forms of ac-
tions to recover taken property. And later changes—like the ratifi-
cation of the Fourteenth Amendment—did not alter this structure.
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20 WILLIAM PRYOR, C.J., dissenting 22-12041

In the early days of the republic, “Congress retained sole re-

sponsibility for paying takings claims against the federal govern-
ment.” William Michael Treanor, The Original Understanding of the
Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 794
n.69 (1995). In doing so, Congress did not sit as a pseudo-judicial
tribunal but instead considered private bills as part of its “power
over the purse.” Floyd D. Shimomura, The History of Claims Against
the United States: The Evolution from a Legislative Toward a Judicial
Model of Payment, 45 LA. L. REV. 625, 627–28, 637 (1985) (first dis-
cussing the roots of legislative resolutions for claims against the
government in English parliamentary practice, then explaining
how Congress maintained that power after the Constitution was
adopted). But see Majority Op. at 34 (describing Congress as “the
lawful judicial tribunal to hear damages actions stemming directly
under the Clause”). Private bills reflected the early republic’s solu-
tion to the fundamental tension between an “individual’s interest
in receiving fair consideration and prompt payment of a meritori-
ous claim” and “society’s interest in maintaining democratic con-
trol over the allocation of limited public revenue among competing
public needs.” Shimomura, supra, at 626. So as part of its appropri-
ations power, Congress meted out compensation for takings claims
on an individual basis. See 2 WILSON COWEN, PHILIP NICHOLS, JR. &
MARION T. BENNETT, THE UNITED STATES COURT OF CLAIMS: A
HISTORY 5 (1978).
When Congress delegated its authority over these claims, it
did so to executive and legislative bodies—not courts. For example,
shortly after the Constitution was ratified, Congress empowered
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22-12041 WILLIAM PRYOR, C.J., dissenting 21

“the auditors and the Comptroller within the newly established

Treasury Department” to review claims against the United States.
Shimomura, supra, at 637 (citing 2 COWEN, NICHOLS & BENNETT,
supra, at 4). But Congress retained control over the resolution of
those claims through appeals from the Comptroller’s decisions and
“by simply refusing to appropriate the necessary funds” to satisfy a
claim. Id. Congress expressly rejected judicial review of the Comp-
troller’s decisions. See William M. Wiecek, The Origin of the United
States Court of Claims, 20 ADMIN. L. REV. 387, 390 (1968) (noting that
James Madison’s proposal that “appeals from the Comptroller’s de-
cisions be allowed to the United States Supreme Court . . . was not
adopted”). Indeed, “when Congress enacted the Judiciary Act of
1789 and extended federal court jurisdiction over the federal gov-
ernment,” it provided jurisdiction over “only those situations
where ‘the United States are plaintiffs . . . or petitioners.’”
Shimomura, supra, at 638 (quoting Act of Sept. 24, 1789, ch. 20,
§ 11, 1 Stat. 73, 78).
In addition to its delegations to the Treasury, Congress con-
tinued to process private bills. The First Congress entertained more
than 700 private and public petitions. Id. And, in 1794, Congress
further entrenched its jurisdiction over claims against the federal
government. The House established a Committee of Claims,
which “had jurisdiction over all money claims against the United
States” and would “report their opinion thereupon” to the House.
Id. at 644 (citation and internal quotation marks omitted). “By
1832, half of Congress’[s] time was consumed with . . . private busi-
ness—Fridays and Saturdays being fully set aside for such
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22 WILLIAM PRYOR, C.J., dissenting 22-12041

purposes.” Id. (citing 8 MEMOIRS OF JOHN QUINCY ADAMS 479

(Phila., Charles Francis Adams ed., 1876)). And the Supreme Court
acquiesced to Congress’s authority over claims against the federal
government as “[t]he universally received opinion [was], that no
suit can be commenced or prosecuted against the United States.”
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411–12 (1821). The Court
explained that “without . . . an appropriation” from Congress, “no
. . . remedy lies against any officer of the Treasury Department” for
“claim[s] on the United States.” Reeside v. Walker, 52 U.S. (11 How.)
272, 291 (1851) (affirming the denial of a writ of mandamus).
This early commitment to congressional resolution of tak-
ings claims establishes that neither Congress nor the federal courts
recognized a right of action directly under the Takings Clause. Re-
liance on private bills continued at least until Congress created the
Court of Claims and later vested it with final jurisdiction over most
claims against the United States in the Tucker Act. Shimomura, su-
pra, at 652, 663–64. The upshot of this history is that although Con-
gress may have been constitutionally compelled to pay just com-
pensation in a way that it was not compelled to pay discretionary
claims, see Treanor, supra, at 794 n.69, the appropriation of those
funds lay with Congress, not the courts, see U.S. CONST. art. I, § 9,
cl. 7 (“No Money shall be drawn from the Treasury, but in Conse-
quence of Appropriations made by Law . . . .”); Off. of Pers. Mgmt.
v. Richmond, 496 U.S. 414, 424 (1990) (“For . . . a claim for money
from the Federal Treasury, the [Appropriations] Clause provides an
explicit rule of decision. Money may be paid out only . . . [as] au-
thorized by a statute.”); Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs.
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22-12041 WILLIAM PRYOR, C.J., dissenting 23

Ass’n of Am., Ltd., 144 S. Ct. 1474, 1484 (2024) (“By the time of the
Constitutional Convention, the principle of legislative supremacy
over fiscal matters engendered little debate and created no disa-
greement.”).
Tellingly, the majority points to no decision from the early
republic that permitted a suit at law against the government for
compensation under the Takings Clause. See Meigs v. McClung’s Les-
see, 13 U.S. (9 Cranch) 11, 16 (1815) (ejectment action); Lee, 106 U.S.
at 198 (ejectment action); Bonaparte v. Camden & A.R. Co., 3 F. Cas.
821, 831, 834 (C.C.D.N.J. 1830) (No. 1,617) (bill in equity); see also
Gardner v. Trs. of the Vill. of Newburgh, 2 Johns. Ch. 162, 166–68 (N.Y.
Ch. 1816) (bill in equity); Bradshaw v. Rodgers, 20 Johns. 103, 105–06
(N.Y. Sup. Ct. 1822) (trespass); Bos. & Roxbury Mill Corp. v. Gardner,
19 Mass. (2 Pick.) 33, 40 (1823) (statutory cause of action under an
act of incorporation); Crenshaw v. Slate River Co., 27 Va. (6 Rand.)
245, 256 (1828) (opinion of Carr, J.) (bill in equity); Proprietors of the
Piscataqua Bridge v. N.H. Bridge, 7 N.H. 35, 72 (1834) (bill in equity);
Thayer v. City of Boston, 36 Mass. (16 Pick.) 511, 514 (1837) (nui-
sance); L. C. & C. R.R. Co. v. Chappell, 24 S.C.L. (Rice) 383, 384, 398
(1838) (eminent domain petition); Sinnickson v. Johnson, 17 N.J.L.
129, 129, 144 (1839) (trespass on the case); State v. Hooker, 17 Vt. 658,
672 (1845) (indictment for assault on sheriff, and stating that sheriffs
acting unlawfully may be sued for taking property); Young v. McKen-
zie, 3 Ga. 31, 37 (1847) (bill in equity “to restrain . . . action of eject-
ment”); Hall v. Washington County, 2 Greene 473, 477 (Iowa 1850)
(implied contract based on statute); State v. Glen, 52 N.C. (7 Jones)
321, 330 (1859) (defense to indictment).
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24 WILLIAM PRYOR, C.J., dissenting 22-12041

Takings claims instead proceeded through common-law

forms of action against the offending officers. The Supreme Court
and inferior courts (and state courts) often used proceedings at
“common law to provide redress for state and local takings.” See
Ann Woolhandler & Julia D. Mahoney, Federal Courts and Takings
Litigation, 97 NOTRE DAME L. REV. 679, 684 (2022). In these com-
mon-law actions, the property owner would sue the officer or gov-
ernment corporation in trespass or another common-law action.
See, e.g., Thacher v. Dartmouth Bridge Co., 35 Mass. (18 Pick.) 501, 501–
02 (1836); see also Knick, 139 S. Ct. at 2176. The official would re-
spond that “his trespass was lawful because [it was] authorized by
statute or ordinance.” Knick, 139 S. Ct. at 2176. The property owner
would in turn attack the constitutionality of that statute or ordi-
nance under the Fifth Amendment. See id. Although property own-
ers could bring “various causes of action” for takings violations,
DeVillier, 63 F.4th at 435 (Oldham, J., dissenting from the denial of
rehearing en banc), those causes of action were not created by the
Takings Clause. See, e.g., Monongahela Navigation Co., 148 U.S. at
313–14, 324 (condemnation action initiated by United States);
VanHorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310, 316 (C.C.D.
Pa. 1795) (claim to title under Pennsylvania law); Fletcher v. Peck, 10
U.S. (6 Cranch) 87, 127–28 (1810) (breach of covenant action); Fair-
fax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603, 603–04, 607–
08 (1813) (ejectment action); Terrett v. Taylor, 13 U.S. (9 Cranch) 43,
45, 55 (1815) (quiet title action); Green v. Biddle, 21 U.S. (8 Wheat.)
1, 3 (1823) (action “to recover certain lands”); Bonaparte, 3 F. Cas. at
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22-12041 WILLIAM PRYOR, C.J., dissenting 25

831 (bill in equity). Common-law forms of action provided the only

ways for courts to redress takings.
That states added just compensation guarantees to their
constitutions tells us nothing about the existence of a right of ac-
tion under the federal Takings Clause. But see Majority Op. at 39–
45 (implying the opposite). Many jurists viewed state constitutional
declarations of rights differently than federal declarations of the
same rights. See Jud Campbell, Constitutional Rights Before Realism,
2020 U. ILL. L. REV. 1433, 1441–42 (explaining that “recognizing a
common set of rights, applicable against the state and federal gov-
ernments alike, did not necessarily mean that those rights had the
same legal boundaries”). And the development of common-law
remedies under state takings clauses did not alter the structure of
the federal Takings Cause. Indeed, contrary to the majority’s con-
tention, where state takings clauses predated the ratification of the
Fifth Amendment, state courts relied on statutory or common law
rights of action to judicially enforce the clauses. See Bos. & Roxbury
Mill Corp., 19 Mass. at 40–43, 43 n.2 (discussing a Massachusetts stat-
ute that provided a right of action to property owners damaged by
the erection of bridges or dams, and explaining that if the govern-
ment had not made such a provision, the state takings clause would
permit suits in trespass against the agents perpetrating the taking);
Thayer, 36 Mass. at 515–16 (embracing tort liability against city
where the “act is done by the authority and order of the city gov-
ernment” or its branches); Hooker, 17 Vt. at 672–73 (observing that
an officer acting unlawfully—such as in violation of the state tak-
ings clause—could be sued in trespass). But see Majority Op. at 50
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26 WILLIAM PRYOR, C.J., dissenting 22-12041

n.16 (citing the same decisions but concluding that the constitu-
tions of Massachusetts and Vermont “automatically secured judi-
cial relief for takings”). So the development of these takings reme-
dies under state law reaffirmed that alternative remedial schemes—
most often common-law forms of action—were the primary and
often sole vehicle for vindicating takings claims at both the state
and federal level.
Nor did the Fourteenth Amendment change the scope of
the Takings Clause. See id. at 1448–50 (explaining the early view of
the Fourteenth Amendment as “refer[ing] to” rights, not
“creat[ing]” them (citation and internal quotation marks omitted)).
Incorporation does not change the fundamental character of the
protection extended; it takes prohibitions that operate against the
federal government and applies parallel prohibitions against the
states. See McDonald v. City of Chicago, 561 U.S. 742, 765 (2010) (plu-
rality opinion) (noting that “incorporated Bill of Rights protections
are all to be enforced against the States under the Fourteenth
Amendment according to the same standards that protect those per-
sonal rights against federal encroachment” (emphasis added) (cita-
tion and internal quotation marks omitted)). The Fourteenth
Amendment did not change the structure of the Takings Clause or
imbue it with a previously unknown right of action. And all the
textual and structural limitations discussed above apply with equal
force to claims against states as they would against the federal gov-
ernment.
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22-12041 WILLIAM PRYOR, C.J., dissenting 27

The Fourteenth Amendment grants Congress the power to

enforce its provisions through legislation. U.S. CONST. amend. XIV,
§ 5; Katzenbach v. Morgan, 384 U.S. 641, 648 & n.7 (1966). In other
words, the Fourteenth Amendment provides Congress the author-
ity to decide whether to abrogate state immunities and whether to
provide a cause of action for constitutional violations and how to
define its contours. A direct right of action against the states or lo-
cal governments, under the Fifth and Fourteenth Amendments,
would undermine this textual delegation. Cf. Cale v. City of Coving-
ton, 586 F.2d 311, 316–17 & n.8 (4th Cir. 1978) (suggesting that im-
plying rights of action under the Fourteenth Amendment flouts
Congress’s power to create remedies). So although the majority is
correct that private congressional bills would be “an ill fit” for tak-
ings by local governments, Majority Op. at 51 n.17, the Fourteenth
Amendment permits Congress to create statutory causes of action.
And as I explain below, Congress did so when it enacted sec-
tion 1983.
This constitutional history reveals no evidence that the Tak-
ings Clause impliedly provides a right of action for property own-
ers. History instead establishes that property owners pursued their
right to just compensation through alternative means: private bills,
common-law forms of action, and suits in equity. And today prop-
erty owners enjoy more remedies for takings than ever before.
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28 WILLIAM PRYOR, C.J., dissenting 22-12041

C. Section 1983 and Georgia Law Provide

Adequate Remedies for Takings.
Even if the text and history of the Takings Clause demanded
judicial enforcement, an adequate alternative remedy would still
obviate the need to imply a right of action. “[C]onstitutional con-
cerns do not arise when property owners have other ways to seek
just compensation.” DeVillier, 144 S. Ct. at 944. Property owners
like Fulton have many remedies for takings under both federal law,
see 42 U.S.C. § 1983, and state law.
Section 1983 provides a right to sue state officers. Id. And in
Monell, the Supreme Court held that “[l]ocal governing bodies . . .
can be sued directly under [section] 1983 for monetary, declaratory,
or injunctive relief where . . . the action that is alleged to be uncon-
stitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that
body’s officers.” 436 U.S. at 690. It also held that this “official policy”
rule could be satisfied if a plaintiff proved that a “governmental cus-
tom” resulted in the violation. Id. at 690–91 (internal quotation
marks omitted).
Monell’s requirement of a “policy or custom” ensures that
the local government, which acts through its officers, is responsible
for the alleged violation before liability attaches. See id. at 663 n.7,
694 (first clarifying that respondeat superior liability could not
serve as the basis for holding local governments liable for employ-
ees’ constitutional violations, then confirming that local govern-
ments may only be sued “when [the] execution of a government’s
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22-12041 WILLIAM PRYOR, C.J., dissenting 29

policy or custom . . . inflicts the injury [such] that the government

as an entity is responsible under [section] 1983”). A contrary hold-
ing would subject local treasuries to liability for every constitu-
tional violation perpetrated by the police, sheriff’s deputies, ani-
mal-control officers, parks-and-recreation employees, sanitation
workers, clerks, or other officials. See Owen v. City of Independence,
445 U.S. 622, 657 (1980) (concluding that Monell protects the public,
as represented through a local government, from liability for ac-
tions not directly caused by its decisions, so local governments did
not need the protection of qualified immunity). In other words,
Monell’s “policy or custom” rule ensures that the plaintiff sues the
proper “offending party,” not to circumscribe the underlying right.
Id. at 651.
Monell does not limit the constitutional right to just compen-
sation. Indeed, section 1983 expands the scope of constitutional
remedies against wrongdoers to include “[e]very person” acting
“under color of ” state law, including both officers and local govern-
ments. After Monell, there is no reason to imply a right of action
against local governments under the Fourteenth Amendment.
Thanks to Congress, that cause of action already exists under sec-
tion 1983. See Owen v. City of Independence, 589 F.2d 335, 337 (8th
Cir. 1978) (“By enacting section 1983, Congress has provided an ap-
propriate and exclusive remedy for constitutional violations com-
mitted by municipalities.”), overruled on other grounds by 445 U.S.
622; Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979) (en banc)
(“[T]here is no place for a cause of action against a municipality
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30 WILLIAM PRYOR, C.J., dissenting 22-12041

directly under the 14th Amendment, because the plaintiff may pro-
ceed . . . under [section] 1983.”).
We should respect Monell’s rejection of vicarious liability for
local governments before fashioning a broader implied right of ac-
tion for takings. Although the United States may sometimes be
held liable for takings violations perpetrated by its officers acting in
“the normal scope of [their] duties,” Darby Dev. Co. v. United States,
112 F.4th 1017, 1024–27 (Fed. Cir. 2024) (discussing Great Falls Man-
ufacturing. Co. v. Garland, 124 U.S. 581, 597 (1888), and Portsmouth
Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 330 (1922)),
local governments are liable only through state action under the
Fourteenth Amendment. True, they are creatures of state law. Yet
local governments are separate entities. That is, a local government
is not a “state” within the meaning of the Amendment. Local gov-
ernments are “persons” that act under color of state law, cf. Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 62–64 (1989) (holding that “a
State is not a person within the meaning of [section] 1983”), and do
not enjoy Eleventh Amendment immunity, Hess v. Port Auth. Trans-
Hudson Corp., 513 U.S. 30, 47 (1994). The Amendment does not es-
tablish that local governments are vicariously liable for the actions
of their employees. See Kostka v. Ho, 560 F.2d 37, 44 (1st Cir. 1977).
And it grants Congress the discretion to create remedial schemes for
its enforcement, “rather than the judiciary.” Katzenbach, 384 U.S. at
648 & n.7. The constitutional text supplies no reason to undermine
the statutory rejection of vicarious liability by creating an end-run
around Congress’s chosen remedial scheme.
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22-12041 WILLIAM PRYOR, C.J., dissenting 31

That section 1983 does not abrogate state sovereign immun-

ity is also no bar to the conclusion that an alternative remedial
scheme fully vindicates takings claims. Sovereign immunity would
protect only the federal government and state governments from
suit. Cf. Owen, 445 U.S. at 638 (“[T]here is no tradition of immunity
for municipal corporations.”). The Tucker Act solves any problem
posed by the former. And state law solves the latter.
Although we have no occasion to address the adequacy of
other states’ rights of action today, but see Majority Op. at 61–62
(discussing whether a sufficient inverse condemnation action lies
for takings of personal property in Indiana, Pennsylvania, Okla-
homa, New Hampshire, and Wisconsin), every state in the Union
provides a remedy under state law for uncompensated takings. See
Knick, 139 S. Ct. at 2168 & n.1. In most, including Georgia, property
owners may bring inverse-condemnation actions against the state.
See Bray v. Dep’t of Transp., 750 S.E.2d 391, 393 (Ga. Ct. App. 2013).
And the two commonly cited exceptions, Ohio and Louisiana, also
provide remedies. In Ohio, plaintiffs may petition by a writ of man-
damus to compel a condemnation proceeding. Knick, 139 S. Ct. at
2168 n.1. In Louisiana, plaintiffs may bring an inverse-condemna-
tion action and enforce a judgment in their favor through a writ of
mandamus. See Constance v. State through Dep’t of Transp. & Dev., Off.
of Highways, 626 So. 2d 1151, 1156 (La. 1993); Watson Mem’l Spir-
itual Temple of Christ v. Korban, 387 So. 3d 499, 512 (La. 2024). The
key lesson from these alternative schemes and the history of tak-
ings litigation is that although American law has always provided
some remedial scheme for takings claims—whether petitions to
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32 WILLIAM PRYOR, C.J., dissenting 22-12041

Congress for private bills, trespass and ejectment actions against in-
dividual federal officers, the Tucker Act and section 1983 actions,
or state inverse-condemnation—the Takings Clause has never been
understood as creating an implied right of action.
That some property owners—like Fulton—might be barred
from seeking compensation from a local government under sec-
tion 1983 does not mean that they lack remedies. Fulton could have
sued the officers who seized his horses either under section 1983 or
under state law. Georgia law provides causes of action for both in-
verse condemnation against the government and conversion
against an individual officer. See Bray, 750 S.E.2d at 393; Decatur Auto
Ctr., 583 S.E.2d at 7 (defining conversion); Fla. State Hosp. for the In-
sane, 21 S.E.2d at 218 (noting that individual-capacity tort suits
against state officials are “generally maintainable” under Georgia
law). If the officers responded that their seizure of Fulton’s horses
was lawful, Fulton could have replied that any authority to take the
horses violated the Takings Clause—like centuries of takings liti-
gants before him. Simply put, Fulton’s takings claim is not unique,
and we need not create an unprecedented constitutional remedy
for him.
Nor do the procedural rules attendant to each of these alter-
native remedial schemes constitute “limits” on the scope of the
Takings Clause. As renowned legal scholars James Ely and Julia Ma-
honey explain in their amicus curiae brief for the Buckeye Institute,
“legislatures may regulate jurisdictional and procedural issues that
govern how claimants seek and obtain” “redress for
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22-12041 WILLIAM PRYOR, C.J., dissenting 33

uncompensated takings.” That property owners must choose from

“a complex network of remedies” does not undermine legislative
authority to define and shape those remedies. Woolhandler, Ma-
honey & Collins, supra, at 266.
For example, Georgia’s one-year notice requirement for
suits against counties does not “narrow” the right to just compen-
sation. Under state law, “[a]ll claims against counties must be pre-
sented within 12 months after they accrue or become payable or
the same are barred.” GA. CODE ANN. § 36-11-1. But holding that
this bar “narrow[s]” the scope of the underlying right upsets the
role of procedural rules in our judicial system. See Majority Op. at
63–64. Nothing would stop that logic from being applied to any
statute of limitations, for example. If statutes of limitations and
other procedural rules narrow constitutional rights, then none of
those rules could ever apply to constitutional claims. See Seaboard,
261 U.S. at 304 (explaining that Congress cannot narrow a constitu-
tional right). And if, as the majority contends, the narrowing prob-
lem only arises when states are the “exclusive” forum for a claim,
then it should give us no pause here. Majority Op. at 63 n.25 (em-
phasis omitted). Georgia is not the exclusive forum for Fulton’s tak-
ings claim. He instead failed to sue the right parties at the right time
to take advantage of his alternative federal forum.
After reaching the opposite conclusion on each of these
points, the majority transgresses the separation of powers to de-
cide yet another novel question of law: what statute of limitations
should apply to an implied right of action under the Takings
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34 WILLIAM PRYOR, C.J., dissenting 22-12041

Clause? See Majority Op. at 12–15. On the one hand, our precedents
apply the state statute of limitations for personal-injury torts in ac-
tions brought under section 1983. See, e.g., McNair v. Allen, 515 F.3d
1168, 1173 (11th Cir. 2008) (citing Wilson v. Garcia, 471 U.S. 261, 275–
76 (1985)); Hillcrest Prop., LLC v. Pasco County, 754 F.3d 1279, 1281
(11th Cir. 2014). And we apply the same statute of limitations to
the few Bivens claims brought “directly” under the Constitution. See
Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996). To break with that
precedent would allow substantively identical claims to follow dra-
matically different tracks through the federal courts because, at
least in Georgia, personal-injury actions must be brought within
two years, and inverse-condemnation and conversion claims must
be brought within four years. GA. CODE ANN. §§ 9-3-30, -32, -33;
Wise Bus. Forms, Inc. v. Forsyth County, 893 S.E.2d 32, 37 (Ga. 2023).
On the other hand, takings claims are like inverse-condemnation
or conversion claims. And when a federal claim lacks a specific lim-
itations period, we borrow the statute of limitations that applies to
the most similar state law. Vigman v. Cmty. Nat’l Bank & Tr. Co., 635
F.2d 455, 459 (5th Cir. Jan. 1981). “At bottom,” weighing the costs
and benefits of alternative limitation periods “is a legislative en-
deavor” we have no authority to undertake. Egbert, 142 S. Ct. at
1802. And that constitutional principle is especially evident where
section 5 of the Fourteenth Amendment expressly delegates en-
forcement questions to Congress, which has already weighed the
costs and benefits to provide an adequate remedy with the shorter
borrowed limitations period.
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22-12041 WILLIAM PRYOR, C.J., dissenting 35

III. CONCLUSION
Let us survey the constitutional wreckage in the wake of the
majority opinion. Contrary to the text and structure of the Fifth
Amendment and our history and tradition, the majority creates a
new right of action for takings of property by local governments.
It flouts recent Supreme Court precedents instructing that we
should not imply a right of action whenever statutory and com-
mon-law remedies already exist. It ignores Supreme Court prece-
dents that reject vicarious liability for local governments and in-
stead require proof of a municipal policy or custom to establish a
constitutional violation. And it borrows a statute of limitations
twice as generous as the one we use both for actions under sec-
tion 1983 and for Bivens actions. The resulting destruction from this
step-by-step rejection of judicial humility is as unnecessary as it is
regrettable.
Georgia law and section 1983—alone or in combination—
provide property owners more than adequate alternative remedies
against local governments and their officers to vindicate their con-
stitutional right to just compensation. That Fulton failed to bring
his claims against the appropriate parties or in a timely manner
does not make his otherwise available remedies inadequate. The
text, structure, and history of the Takings Clause provide no sup-
port for creating an implied right of action. The majority’s tale of
a “constitutional unicorn” is a fantasy.
Because I would affirm the judgment of the district court, I
respectfully dissent.