Last week, the Supreme Court heard oral argument in Knick v. Township of Scott, a case that presents the question whether “the Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank, requiring property owners to exhaust state court remedies to ripen federal takings claims.” At issue in Knick is the proper interpretation of the Fifth Amendment, which says that “private property” shall not “be taken for public use, without just compensation.” In Williamson County, the Court had previously held that “if a State provides an adequate procedure for seeking just compensation” for a taking, such as an avenue to sue in state court for inverse condemnation, then “the property owner cannot claim a violation of the Just Compensation Clause until it has used th[at] procedure and been denied just compensation” by the relevant state or local tribunal. The Williamson County Court contended that “no constitutional violation occurs until just compensation has been denied” and that the state government had not denied just compensation until its state tribunals had spoken.

Knick could have significant consequences for the Takings Clause; for constitutional remedies generally; and, most pertinently for readers of this blog, for judicial control of federal administrative action. That is because, like every other portion of the Bill of Rights, the Takings Clause does not specify the mechanism by which it may be enforced against the federal — or through the Fourteenth Amendment, a state — government. Instead, the scheme for remedying takings claims against state officers and municipal governments can be found in 42 U.S.C. § 1983 — which is at issue in Knick and which parallels (though, in significant ways, differs from) the scheme for remedying takings claims against the federal Government in the Court of Federal Claims under the Tucker Act. During the Knick oral argument, the Justices focused on the question of timing. As Justice Kagan put it (on page nine of the transcript): “[W]hen exactly [does] the violation occur[] and why [does] it occur[] before the state denies compensation in the inverse condemnation proceeding? . . . Is that because — are you saying that’s because the right to compensation is immediate; in other words, there’s a right to compensation contemporaneous with the taking?”

As we will explain in a forthcoming article on The Remedial Structure of the Takings Clause, this question, as well as the proper scheme for enforcing the Takings Clause generally, was the subject of debate for well over a century before Williamson County. James Kent, a master in chancery in New York who had significant influence on the development of American equitable remedies, discussed the issue in his Commentaries on American Law. “The better opinion,” he wrote, “is, that the compensation, or offer of it, must precede or be concurrent with the seizure and entry upon private property under the authority of the state.” “The government is bound” under the Takings Clause, Kent continued, “to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms; and if the government proceed without taking these steps, their officers and agents may, and ought to be restrained by injunction.” (To our knowledge, neither Kent’s Commentaries, nor the cases discussed below, have been brought to the Court’s attention in the briefing in Knick, nor analyzed in the sizable scholarly literature on Williamson County.)

This post will address how Chancellor Kent’s logic plays out in claims against the federal Government, how it plays out in claims against state officers and municipal governments, and the implications for Knick and other related issues.

1. Takings Claims under the Tucker Act

In early practice, enforcement of the Takings Clause occurred by way of a common-law suit in trespass and ejectment against the federal officer who invaded the property of a private owner. If an officer invaded the private property of a landowner, the landowner sued the officer for trespass and ejectment. At that point, the officer would, if possible, invoke a statutory provision authorizing his invasion into private land, which in turn prompted the property owner to respond that the officer’s defense violated the Takings Clause absent payment. A court would grant the injunction or writ of ejectment if the officer lacked statutory authority or if the statute promised no compensation, but would trust the good faith of the government to pay its debts where tender or offer of compensation was timely made.

The timing question was the subject of significant Supreme Court case law. For example, in 1871 (coincidentally, the very same year that Congress enacted section 1983, the statute at issue in Knick), the Supreme Court in United States v. Russell explained that “the provision for compensation, except in certain extreme cases, is a condition precedent annexed to the right of the government to deprive the owner of his property without his consent.” A “condition precedent,” under general principles of contract law, is some event that must occur before the contract may trigger the liability of another party. In cases like Russell, where the legislature had made “provision for compensation” before the invasion of property (or where an “emergency” justified a unilateral taking by the executive), courts characterized the case as one arising under an “implied contract” between the private property owner and the government formed at the point of invasion into private property. But when the government failed to make “provision for compensation,” the case was understood as a “tort” suit against the federal officer who had invaded the property ultra vires. “Implied contract” cases were brought against the federal Government, pursuant to Congress’s waiver of sovereign immunity and grant of jurisdiction to the Court of Claims (now the Court of Federal Claims) over claims “upon any contract, express or implied” with the Government. “Tort” cases, by contrast, were pursued against the individual officer in federal district court, on the theory that Congress had not waived sovereign immunity over such cases in the Court of Claims and that the government’s agent (rather than the government itself, as principal) had committed the tort.

The facts of Russell are illustrative. Russell involved three steamboats taken by the U.S. government during the Civil War “without any agreement fixing the compensation to which the owner should be entitled.” The Court ultimately held that an emergency “justified” ordering the steamboats into the federal Government’s service, thereby establishing “beyond all doubt that the officers who issued them were not trespassers” and that “the government of the United States [was] bound to make full compensation to the owner for the services rendered” under an implied contract. The Court of Claims therefore had jurisdiction to resolve the plaintiff’s claim for money damages against the United States. Roughly contemporaneously (in 1879), the Court in Langford v. United States held that no Court of Claims remedy was available where “Indian agents acting for the United States … took possession of” the plaintiffs’ buildings and “retained them by force.” The United States maintained that the federal Government had not taken the property, but instead the agents had title to the land. Assuming that the title was, indeed, in the plaintiffs rather than the Indian agents, the Court concluded “that the act of the United States in taking and holding that possession was an unequivocal tort” by the agents and therefore could not give rise to an implied contract with the Government compensable in the Court of Claims.

No case better illustrates these principles than one of the foundational precedents of Twentieth Century separation-of-powers law, Youngstown Sheet & Tube Co. v. Sawyer (or the “Steel Seizure Case”), which famously rejected President Truman’s argument, in the face of a threatened strike by the United Steelworkers of America, that he had the authority to direct the Secretary of Commerce “to take possession of and operate most of the Nation’s steel mills.” Before addressing the scope of the President’s authority, “Part I” of Justice Black’s majority opinion addressed the proper remedial scheme for the Takings Clause and, specifically, the federal Government’s contention that the availability of a damages remedy in the Court of Claims barred plaintiffs’ claim for injunctive relief. As the Court recognized, “equity’s extraordinary injunctive relief” was generally not appropriate where “there were available legal remedies adequate to afford compensation for any possible damages.” But the Court rejected the applicability of the principle in the Steel Seizure Case, because no Court of Claims remedy was available for a government seizure that resulted from the ultra vires action of government officers. The Court’s reasoning on this issue is worth quoting, because it recognized that, by 1952 (when the Steel Seizure Case was decided), some precedents had questioned the distinction between implied contracts and torts:

Prior cases in this Court have cast doubt on the right to recover in the Court of Claims on account of properties unlawfully taken by government officials for public use as these properties were alleged to have been. See, e.g., Hooe v. United States, 218 U.S. 322, 335-336 [(1910)]; United States v. North American Transportation & Trading Co., 253 U.S. 330, 333 [(1920)]. But see Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 701-702 [(1949)].

The Court’s use of the “but see” signal suggests that the Court itself was having difficulty reconciling two separate strands of its own jurisprudence. One strand of precedents authorized a Court of Claims lawsuit only for “implied contract” claims, with ultra vires “tort” claims treated as giving rise to an equitable claim against the federal officer — as in the Steel Seizure Case. A second strand of precedents (like Larson and United States v. Causby) held that both “implied contract” and “tort” claims could be resolved in the Court of Claims.

The critical issue for our purposes, however, is that an “implied contract” (for authorized takings) or a “tort” (for unauthorized takings) arose at the point of the invasion into private property, even if a constitutional violation under the Fifth Amendment occurred at a later point when the government failed to provide just compensation.

2. Takings Claims under Section 1983

Until the Fourteenth Amendment’s adoption in 1868, the Takings Clause of the Fifth Amendment was inapplicable to state and local governments, though those governments were subject to similar takings provisions in state constitutions. Following the Fourteenth Amendment’s adoption, Congress enacted (in 1871, the same year the Court decided Russell) section 1983 to enforce the Fourteenth Amendment’s provisions. Section 1983 provides a cause of action in federal court against any “person” or municipality “who, under color of” state law, “subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution.”

Section 1983 therefore allows a private plaintiff to seek redress for the “deprivation” of a constitutional right. The critical question posed in Knick is whether the “deprivation” referenced by section 1983 occurs at the point of a constitutional violation under the Takings Clause or, alternatively, at the point that an “implied contract” or “tort” arises. For four reasons, the better view is that the deprivation occurs, and the cause of action accrues under section 1983, at the time of the “implied contract” or “tort.”

First, such an interpretation of section 1983 is consistent with the Court’s interpretation of the Tucker Act. The Tucker Act gives the Court of Federal Claims jurisdiction over “any claim against the United States founded either upon the Constitution … or upon any express or implied contract with the United States.” It is abundantly clear that Congress (when it enacted the predecessor to the Tucker Act in 1855) believed that a “claim” for a violation of the Takings Clause under the Act accrued at the time of the invasion into property. In Russell, the Court made clear that an implied contract gave rise to a “claim” in the Court of Claims. For the same reason, an “implied contract” or “tort,” by itself, gives rise to a “deprivation” under section 1983.

Second, the text of section 1983, and the Court’s precedents interpreting it, make clear that the statute authorizes anticipatory relief before a constitutional violation. Section 1983’s text expressly authorizes a “suit in equity” or “declaratory relief” for deprivations of constitutional rights. In City of Los Angeles v. Patel, the Court explained that a “facial challenge” before the violation of a constitutional right — namely, “an attack on [the] statute itself as opposed to a particular application” — could be brought under section 1983, albeit without mentioning section 1983 itself. A narrower definition of “deprivation” would cast doubt not only on Patel, but also other anticipatory remedies brought under section 1983.

Third, section 1983 was enacted against a backdrop of state common-law suits that understood a taking to have occurred at the moment the government — by statutory authorization — intruded on a landowner’s private property. Take, for example, the New York Supreme Court’s opinion in People ex rel. Utley v. Hayden, 6 Hill 359, 362 (1844), which explained that once “the public agents have entered upon and taken possession of the property in the manner contemplated by the statute, the event has happened which entitles the owner to an appraisement of his damages.” The cases adopting this approach are legion. See, e.g., People ex rel. Green v. Michigan So. Ry. Co., 3 Mich. 496, 501-02 (1855); Young v. Harrison, 6 Ga. 130, 150 (1849). There is ample reason to believe that the Congress that enacted section 1983 legislated against this backdrop and, thereby, intended to adopt the common-law approach to the timing of takings claims.

Fourth, it is clear from the legislative history of section 1983 that its proponents sought to protect against invasions of property rights following the wave of violence and intimidation against former slaves in the wake of the Civil War. For example, President Ulysses S. Grant’s message to Congress recommending new legislation referred to “effectually secur[ing] life, liberty, and property, and the enforcement of law in all parts of the United States.” In his message, Grant remarked on the “condition of affairs [that] now exists in some States of the Union rendering life and property insecure” and contended that “the power to correct these evils is beyond the control of State authorities.” And the 1871 legislative debates reinforced that Congress wanted to protect property rights. In introducing the bill, Representative Samuel Shellabarger of Ohio, its principal sponsor, contended that the proposal sought to protect the “privileges and immunities of citizens in the several States,” among which were “the right to acquire and possess property of every kind.” Representative John Bingham of Ohio similarly contended that, under the Reconstruction Amendments, it was “competent for Congress to provide that no citizen in any State shall be deprived of his property by State law or the judgment of a State court without just compensation therefor.”

It would be anomalous, to say the least, to understand Congress to have provided no federal forum for vindication of rights under the Takings Clause in light of the parallels between section 1983 and the Tucker Act’s text, the availability of anticipatory relief in a variety of other contexts under section 1983, the long history of common-law takings actions against which Congress enacted section 1983, and the express references to the protection of property rights under the Fifth Amendment during the legislative debates surrounding section 1983’s enactment.

3. Implications

The implications of the preceding analysis for Knick are straightforward: Williamson County was wrongly decided, and section 1983 is properly understood to provide a federal forum for claims arising out of the Takings Clause. Such claims accrue, because a “deprivation” occurs, at the time of a tort or implied contract under the old common-law approach to Takings Clause enforcement.

The implications for other constitutional remedies and administrative law are more complex. First, one of the questions lurking in the backdrop of Knick is whether the remedial scheme for the Takings Clause is a matter of federal constitutional law (and thereby established by the Fifth Amendment or generally applicable constitutional principles) or federal statutory law (and thereby established by section 1983 and the Tucker Act). Chancellor Kent’s Commentaries suggest that the timing rules for takings claims are set by the federal Constitution. If the Court adopts that position (and overturns Williamson County on constitutional reasoning), it would suggest that the Fifth Amendment, by its own force, provides the timing rules and other procedures for enforcing the Takings Clause. That holding, in turn, may have implications for a variety of other questions about the scope and availability of implied constitutional remedies, because it might suggest that Congress cannot depart from the common-law remedial scheme for enforcing constitutional rights in existence at the time of the Bill of Rights’ adoption.

Second, the implications for federal administrative law also depend on whether the Court rejects Williamson County as a matter of constitutional law. If it were to do so, then one might well ask whether the Constitution compelled the distinction between implied contracts and torts drawn by the common-law cases, Chancellor Kent, and the Steel Seizure Case. If so, the Court’s later, Twentieth Century understandings of the Tucker Act (which have tended to downplay that distinction) may well be wrong. That would suggest, in turn, that only takings claims founded on implied contract with the United States may be litigated in the Court of Federal Claims; others founded on tort may be litigated in federal court in an injunctive suit.

But the Court can bracket these questions for a later day by resolving Knick on statutory grounds. For now, the Court can harmonize the timing rules for takings claims by holding that a “deprivation” occurs under section 1983 at the same time that a “claim” arises under the Tucker Act and, thereby, overturning the rule announced in Williamson County.

Aditya Bamzai is an associate professor at the University of Virginia School of Law. David N. Goldman is a law student in the Class of 2019 at the University of Virginia School of Law.