Devillier et al v. THE STATE OF TEXAS

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
RICHARD ALLEN DEVILLIER, et
al.,
Plaintiffs.
V.
STATE OF TEXAS,
Defendant.
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CIVIL ACTION NO. 3:20-CV-00223
MEMORANDUM AND RECOMMENDATION
I would not be surprised if one day there is a law school class devoted entirely
to this case. That is because the instant matter presents a myriad of fascinating
procedural and substantive legal issues. It is not every day that a case pending in
Galveston, Texas ends up before the United States Supreme Court. But that is
exactly what has happened here.
I have spent an enormous amount of time and effort over the past several
years working on this case. The lawyering on both sides has been superb. I would
love nothing more than to continue working on this case through its conclusion.
Alas, I do not think this case can remain in federal court. After reviewing the
Supreme Court’s recent opinion in this case, as well as the parties’ briefing on the
jurisdictional issues, I am convinced that federal question jurisdiction is lacking. I
must, therefore, recommend that the State of Texas’s motion to remand be
granted, and these consolidated cases be returned to the state courts from which
they originated.
BACKGROUND
United States Interstate Highway 10 is a major transportation corridor,
providing the main connection between Houston and the Southeast portion of the
United States. During heavy rainfall events, stormwater draining from north to
south (toward the Gulf of Mexico) would inundate I-10 between Houston and
United States District Court
Southern District of Texas
ENTERED
January 05, 2026
Nathan Ochsner, Clerk
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Beaumont, making it impassable. To facilitate the use of I-10’s eastbound lanes as
an 	evacuation 	route 	during 	periods 	of 	flooding, 	the 	Texas 	Department 	of
Transportation installed a 32-inch impenetrable, solid concrete traffic barrier on
the highway’s centerline. The barrier was intended to act as a dam, protecting the
southside of the freeway from flooding by keeping all rainfall on the northside.
According to Plaintiffs, the barrier did its job. During Hurricane Harvey and
Tropical Storm Imelda, two storms that hit the Gulf Coast over the last decade,
rainfall that would otherwise run overtop the roadway and continue downstream
towards the Gulf of Mexico instead was stopped by the barrier. This allowed the
south side of the highway to remain open. But the barrier caused Plaintiffs’
properties on the northside of I-10 to flood, ultimately displacing Plaintiffs from
their homes, ruining crops, killing livestock, and destroying personal property.
Plaintiffs originally filed four putative class actions against the State in Texas
state court—two in Chambers County, one in Jefferson County, and one in Liberty
County. In each lawsuit, Plaintiffs argue that the State’s construction of the solid
concrete barrier along a stretch of I-10 caused their properties to be inundated,
taken, destroyed, and damaged without their consent or compensation in violation
of both the Texas and United States Constitutions.
The State removed the four cases to federal court, and they were eventually
transferred to the Galveston Division of the Southern District of Texas. In the
interests of judicial economy and efficiency, I consolidated all the actions into this
case. After Plaintiffs filed an amended pleading, the State moved to dismiss
Plaintiffs’ Fifth Amendment Takings Clause claim for several independent reasons,
including that Plaintiffs had no cause of action arising directly under the Takings
Clause. The district court denied the motion to dismiss, but allowed for a
permissive interlocutory appeal.
In 	a 	three-sentence 	opinion, 	the 	Fifth 	Circuit 	held 	“that 	the 	Fifth
Amendment Takings Clause as applied to the states through the Fourteenth
Amendment does not provide a right of action for takings claims against a state.”
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Devillier v. State, 53 F.4th 904 (5th Cir. 2023). After the Fifth Circuit refused to
hear the case en banc, the Supreme Court “granted certiorari to decide whether a
property owner may sue for just compensation directly under the Takings Clause.”
DeVillier v. Texas, 601 U.S. 285, 290 (2024). Writing for a unanimous court,
Justice Clarence Thomas declined to reach the question presented because it
“would be imprudent to decide [what would happen if a property owner had no
cause of action to vindicate his rights under the Takings Clause] without satisfying
ourselves of the premise that there is no cause of action.” Id. at 292. Noting “that
constitutional concerns do not arise when property owners have other ways to seek
just compensation,” id. at 292, the Supreme Court explained that Texas’s “state-
law inverse-condemnation cause of action provides a vehicle for takings claims
based on both the Texas Constitution and the Takings Clause.” Id. at 293. The
Supreme Court concluded that, on remand, Plaintiffs “should be permitted to
pursue their claims under the Takings Clause through the cause of action available
under Texas law.” Id.
After mandate issued, Plaintiffs filed a Second Amended Master Complaint
(“Complaint”). See Dkt. 162. The Complaint advances six counts: (1) a state inverse
condemnation claim under article 1, § 17 of the Texas Constitution; (2) a federal
inverse 	condemnation 	claim 	under 	the 	United 	States 	Constitution’s 	Fifth
Amendment Takings Clause; (3) a Fourteenth Amendment procedural due process
claim; (4) a Fourteenth Amendment substantive due process claim; (5) a request
for declaratory and injunctive relief; and (6) a state common law cause of action
seeking just compensation for violation of the United States Constitution’s Fifth
Amendment Takings Clause.
The State has moved to remand the case to state court. See Dkt. 174.
Plaintiffs oppose. I held an oral argument to fully explore the relevant legal issues.
I now explain why this case must be remanded to state court.
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LEGAL STANDARD
“Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). Accordingly, “doubts regarding whether removal
jurisdiction is proper should be resolved against federal jurisdiction” and in favor
of remand. Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000). Where
Plaintiffs amend their “complaint following [the] suit’s removal, a federal court’s
jurisdiction depends on what the new complaint says.” Royal Canin U.S.A., Inc. v.
Wullschleger, 604 U.S. 22, 30 (2025).
The two primary sources of federal district courts’ original jurisdiction are
diversity jurisdiction and federal question jurisdiction. See U.S. Const., art. III, § 2,
cl. 1; 28 U.S.C. §§ 1331–32. Diversity jurisdiction allows district courts to decide
cases that are between citizens of different states when the amount in controversy
involves more than $75,000. See 28 U.S.C. § 1332(a). Federal question jurisdiction
exists where a claim arises “under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Because the parties agree that diversity jurisdiction is
lacking, this court’s ability to hear this matter turns on whether there is federal
question jurisdiction.
“The presence or absence of federal-question jurisdiction is governed by the
well-pleaded complaint rule, which provides that federal jurisdiction exists only
when a federal question is presented on the face of the plaintiff’s properly pleaded
complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (quotation
omitted). An action arises under federal law “only in those cases in which a well-
pleaded complaint establishes either that federal law creates the cause of action or
that the plaintiff’s right to relief necessarily depends on resolution of a substantial
question of federal law.” Singh v. Duane Morris LLP, 538 F.3d 334, 337–38 (5th
Cir. 2008) (cleaned up). The “test for jurisdiction over federal issues embedded in
state-law claims between nondiverse parties” is this: “does a state-law claim
necessarily raise a stated federal issue, actually disputed and substantial, which a
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federal forum may entertain without disturbing any congressionally approved
balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods.,
Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005). Federal courts must
presume “that a cause lies outside this limited jurisdiction” unless the party
asserting federal jurisdiction carries its burden to establish otherwise. Kokkonen,
511 U.S. at 377.
ANALYSIS
In a nutshell, the State’s position is that the Supreme Court’s DeVillier
decision establishes “that where a Texas cause of action exists to vindicate federal
takings rights, Plaintiffs must use it and cannot rely alternatively on an implied
federal cause of action.” Dkt. 174 at 13. Because “constitutional concerns do not
arise” where, as here, Texas law provides a way “to seek just compensation,” the
State insists that federal question jurisdiction does not exist and this case must be
remanded to state court. DeVillier, 601 U.S. at 292.
Plaintiffs 	strongly 	disagree. 	They 	argue 	that 	“[f]ederal 	subject 	matter
jurisdiction over this case is provided by the general federal question jurisdiction
statute for Counts 2 (federal Takings Clause), 3 (procedural due process), 4
(substantive due process), and 6” (a state-law cause of action grounded in the
federal Takings Clause). Dkt. 175 at 9. In Plaintiffs’ view, the jurisdictional issues
are simple and straightforward: “This Court would be hard pressed to find a claim
more squarely within its federal question jurisdiction than one based directly on
the U.S. Constitution.” Id. at 12.
Because it is settled law that a case properly belongs in federal court if there
is a single federal question present in the Complaint, I must conduct a claim-by-
claim inquiry. At the same time, I am mindful that any doubts or ambiguities I have
concerning federal question jurisdiction must be resolved in favor of remand. See
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
Count 2: Count 2 purports to assert a claim directly under the Fifth
Amendment’s Takings Clause, which mandates the payment of just compensation
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when a government takes private property for public use. See U.S. Const. amend.
V. Plaintiffs argue that Count 2 falls squarely within federal question jurisdiction
because 	it 	requires 	construction 	of 	federal 	law 	as 	applied 	under 	the 	Fifth
Amendment. At first blush, Plaintiffs have a point. They plainly allege a Fifth
Amendment Takings Claim on the face of the Complaint. But that is not the end of
the story. Even though “a federal claim appears on the face of the complaint,”
federal 	question 	jurisdiction 	does 	not 	exist 	when 	there 	is 	“a 	frivolous 	or
insubstantial claim, i.e., a claim which has no plausible foundation or which is
clearly foreclosed by a prior Supreme Court decision.” Young v. Hosemann, 598
F.3d 184, 188 (5th Cir. 2010) (quotation omitted).
It is worth repeating that the Supreme Court in 	DeVillier held “that
constitutional concerns do not arise when property owners have other ways to seek
just compensation.” DeVillier, 601 U.S. at 292. Given that “Texas state law provides
a[n inverse-condemnation] cause of action by which property owners may seek just
compensation against the State,” the Supreme Court instructed Plaintiffs “to
pursue their claims under the Takings Clause through the cause of action available
under Texas law.” Id. at 293.
Justice Thomas recognized in DeVillier that the state court system is capable
of handling those cases in which property owners advance a state-law inverse
condemnation 	cause 	of 	action 	to 	vindicate 	their 	rights 	under 	the 	Fifth
Amendment’s Takings Clause:
Our 	constitutional 	system 	assigns 	to 	state 	officers 	a 	coordinate
responsibility to enforce the Constitution according to their regular
modes of procedure. It therefore looks to the good faith of the States
to provide an important assurance that “this Constitution, and the
Laws of the United States which shall be made in Pursuance thereof
shall be the supreme Law of the Land.” We should not assume the
States will refuse to honor the Constitution, including the Takings
Clause, because States and their officers are also bound by obligations
imposed by the Constitution.
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DeVillier, 601 U.S. at 292-93 (quoting U.S. Const., art. VI) (cleaned up). In
remanding this case to the district court for further proceedings consistent with
the Supreme Court’s decision, Fifth Circuit Judge Patrick E. Higginbotham offered
his opinion: “It is now settled that in providing rights of action for takings by the
state, Texas is discharging its obligations under the Fifth Amendment and the state
removal is now without jurisdictional legs to stand on.” DeVillier v. Texas, 132
F.4th 746, 747 (5th Cir. 2024) (Higginbotham J., concurring).
Federal 	question 	jurisdiction 	typically 	exists 	when 	“a 	well-pleaded
complaint establishes either that federal law creates the cause of action or that the
plaintiff’s right to relief necessarily depends on resolution of a substantial question
of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1,
27–28 (1983). Plaintiffs’ right to relief under a state-law inverse condemnation
cause of action does not implicate a substantial question of federal law.
As Justice Benjamin Cardozo explained almost 90 years ago:
The most one can say is that a question of federal law is lurking in the
background, just as farther in the background there lurks a question
of constitutional law, the question of state power in our federal form
of government. A dispute so doubtful and conjectural, to far removed
from plain necessity, is unavailing to extinguish the jurisdiction of the
states.
. . .
If we follow the ascent far enough, countless claims of right can be
discovered to have their source or their operative limits in the
provisions of a federal statute or in the Constitution itself with its
circumambient restrictions upon legislative power. To set bounds to
the pursuit, the courts have formulated the distinction between
controversies that are basic and those that are collateral, between
disputes that are necessary and those that are merely possible.
Gully v. First Nat. Bank, 299 U.S. 109, 117–18 (1936). The same holds true here.
Counts 3 and 4: In Count 3, Plaintiffs allege a procedural due process
claim in violation of the Fourteenth Amendment “[i]n the alternative to Count 1.”
Dkt. 162 at 29. Plaintiffs contend that if their claims under article 1, § 17 of the
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Texas Constitution (Count 1) are “denied based on a determination that it must be
shown that the State possessed actual knowledge that its actions were certain to
inundate specific parcels of property,” then Plaintiffs have been deprived of a
property interest without procedural due process of law. Id. In Count 4, Plaintiffs
allege—again “[i]n the alternative” to their takings claims—a substantive due
process claim in violation of the Fourteenth Amendment. This claim is premised
on 	the 	idea 	that 	if 	“Plaintiffs 	have 	no 	right 	to 	directly 	assert 	an 	inverse
condemnation claim against the State of Texas for just compensation under the
Fifth Amendment to the U.S. Constitution,” then “their substantive rights to due
process protection secured by the Fourteenth Amendment to the U.S. Constitution
have been violated by the State’s taking.” Id. at 31.
Because I am obligated to strictly construe the removal statute in favor of
remand, I conclude that neither Count 3 nor Count 4 provide subject matter
jurisdiction. It is black-letter law that “a claim must be ripe for a federal court to
have jurisdiction.” Lower Colo. River Auth. v. Papalote Creek II, L.L.C., 858 F.3d
916, 924 (5th Cir. 2017). The “[r]ipeness doctrine enforces the Constitution’s limit
of federal court jurisdiction to ‘cases or controversies’ by preventing premature
litigation.” Archbold-Garrett v. New Orleans City, 893 F.3d 318, 321 (5th Cir.
2018). “A claim is not ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at all.” Texas v. United
States, 523 U.S. 296, 300 (1998) (quotation omitted). “A court should dismiss a
case for lack of ‘ripeness’ when the case is abstract or hypothetical.” Orix Credit
All., Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000) (quotation omitted). In
determining whether a case is ripe, there are two key considerations: “the fitness
of the issues for judicial decision and the hardship to the parties of withholding
court consideration.” Id. (quotation omitted).
Plaintiffs’ procedural and substantive due process claims outlined in Counts
3 and 4 are abstract, hypothetical, and contingent. As Plaintiffs recognize, their
procedural and substantive due process claims only arise if they do not prevail on
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their underlying takings claim. But “where the injury that resulted from an alleged
procedural due process violation is merely a taking without just compensation,
[the court] cannot know whether the plaintiff suffered any injury until the takings
claim has been adjudicated.” Rosedale Missionary Baptist Church v. New Orleans
City, 641 F.3d 86, 91 (5th Cir. 2011). For that reason, Plaintiffs must allow their
state-law inverse-condemnation claim to run its course before they can raise—and
a court can adjudicate—their procedural and substantive due process claims. See
id. at 89 (“Because the church does not allege a substantive due process claim that
is independent of its procedural due process claim, and we cannot address the
procedural due process claim without knowing the outcome of the takings claim,
which is not before us, we dismiss the case as unripe.”); John Corp. v. City of
Houston, 214 F.3d 573, 585–86 (5th Cir. 2000) (holding that a district court
cannot address a procedural due process claim until it has determined whether a
taking has occurred). 1
As the State points out, Plaintiffs offer their procedural and substantive due
process claims “as a hedge bet in the event their” Counts 1 and 2 fail. Dkt. 176 at
19. Because Plaintiffs’ procedural and substantive due process claims are entirely
dependent on the outcome of their takings claims, the due process issues are not
ripe. Thus, no federal question jurisdiction exists with respect to Counts 3 and 4. 2
1 Plaintiffs argue that Rosedale and John Corp. are inapposite because they are based on
Williamson County’s now-defunct state-court exhaustion requirement. See Williamson
Cnty. Reg’l Plan. Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985), overruled in part
by Knick v. Twp. of Scott, 588 U.S. 180 (2019). This argument does not move me because
the Fifth Circuit stated in Rosedale and John Corp. that it was relying on general ripeness
principles, not Williamson County, to find procedural and substantive due process claims
unripe in the taking context. See Rosedale, 641 F.3d at 89 (“[T]he church’s due process
claim is unripe based not on Williamson County but on general ripeness principles.”);
John Corp., 214 F.3d at 586 (“In determining that Appellants’ procedural due process
claim is unripe, we do not apply Williamson County per se, but rather the general rule
that a claim is not ripe if additional factual development is necessary.”).
2 I acknowledge that the State has previously taken the position that Counts 3 and 4
independently provide federal subject matter jurisdiction. See Dkt. 175 at 20. Although
Plaintiffs are quick to highlight those prior statements, “no action of the parties can confer
subject-matter jurisdiction.” Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456
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Count 6: In Count 6, Plaintiffs bring a state common law cause of action
seeking just compensation for violation of the Fifth Amendment. This is the state-
law inverse-condemnation claim that the Supreme Court noted in DeVillier
provides a vehicle for takings claims based on both the Texas Constitution and the
federal Takings Clause. This state-law claim does not give rise to federal question
jurisdiction.
There is a “long-settled understanding that the mere presence of a federal
issue in a state cause of action does not automatically confer federal-question
jurisdiction.” Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 813 (1986).
“A suit arises under the law that creates the cause of action.” American Well Works
Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). “Federal jurisdiction is not
shown by this test, for [Plaintiffs] allege[] an asserted cause of action created by
Texas law.” Willy v. Coastal Corp., 855 F.2d 1160, 1167 (5th Cir. 1988).
“[F]ederal jurisdiction over a state law claim will lie if a federal issue is:
(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of
resolution in federal court without disrupting the federal-state balance approved
by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). “Where all four of these
requirements are met, . . . jurisdiction is proper because there is a serious federal
interest in claiming the advantages thought to be inherent in a federal forum,
which can be vindicated without disrupting Congress’s intended division of labor
between state and federal courts.” Id. (quotation omitted).
None of these elements are satisfied here. To begin, there is no federal issue
necessarily raised in this case. That is because the State has “honor[ed] its
obligations under the Fifth Amendment” by providing a cause of action for inverse
condemnation. 	DeVillier, 	132 	F.4th 	at 	748 	(Higginbotham 	J., 	concurring).
“[F]ederal 	jurisdiction 	demands 	not 	only 	a 	contested 	federal 	issue, 	but 	a
substantial one, indicating a serious federal interest in claiming the advantages
U.S. 694, 702 (1982). “Courts have an independent obligation to determine whether
subject-matter jurisdiction exists.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010).
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thought to be inherent in a federal forum.” Grable, 545 U.S. at 313. Even if there is
a 	federal 	issue 	at 	stake, 	Plaintiffs’ 	right 	to 	relief 	on 	the 	state-law 	inverse
condemnation cause of action does not depend on the resolution of a substantial
and disputed question of federal law. Finally, there is no reason to think that a
federal court is uniquely positioned to address a state-law inverse condemnation
claim simply because such a claim allows Plaintiffs to vindicate their rights under
the federal Takings Clause. Indeed, the Supreme Court has already opined in this
case that it has no constitutional concerns with state courts handling such claims
“according to their regular modes of procedure.” DeVillier, 601 U.S. at 292
(quotation omitted).
A mere invocation of the federal Takings Clause in the Complaint does not,
by itself, give rise to federal question jurisdiction, especially when the underlying
cause of action—in this case, an inverse condemnation claim—is brought under
state law. As pointed out by the State, the logical extension of Plaintiffs’ argument
is that
every single taking case that exists across the entire U.S., in every
state, which all, to some degree, can trace their way back to the
Constitution, can be filed in federal court. The allowance of this
position would strip the states’ judiciar[ies] of their powers to govern
the actions and the laws of their state[s]. See Alden v. Maine, 527 U.S.
706, 713 (1999) (“[T]he States entered the federal system with their
sovereignty intact. Various textual provisions of the Constitution
assume the States’ continued existence and active participation in the
fundamental processes of governance.”).
Dkt. 176 at 22.
I am sympathetic to Plaintiffs’ argument that “[r]eturning to state courts
would erase years of effort and return a near-trial-ready case to a disorganized
infancy.” Dkt. 175 at 10. I have no doubt that Plaintiffs are correct in their
assessment. But my task is not to select the most convenient forum for the parties
to litigate their dispute. I am “duty-bound” to examine whether subject-matter
jurisdiction exists and I may not proceed where it is apparent that jurisdiction does
not exist. Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir.
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2004); see also Wullschleger, 604 U.S. at 26 (“If the complaint presents no federal
question, a federal court may not hear the suit.”). It is apparent that jurisdiction
does not exist here.
* * *
In sum, Plaintiffs’ only ripe claims are their claims under article 1, § 17 of the
Texas Constitution (Count 1) and their state common law cause of action seeking
just compensation for violation of the Fifth Amendment (Count 6). Although Count
6 implicates the federal Takings Clause, the cause of action is created by state law.
Plaintiffs’ claim for procedural and substantive due process would be a source of
federal question jurisdiction if they were ripe, but they are not. Accordingly, there
is no ripe claim that gives rise to federal question jurisdiction.
CONCLUSION
Construing all doubts and ambiguities in favor of remand, as I am required
to do, I conclude that this court does not possess subject matter jurisdiction. I thus
recommend that the State of Texas’s Motion to Remand to State Court (Dkt. 174)
be granted. These four consolidated cases—No. 3:20-cv-223; No. 3:20-cv-379; No.
3:21-cv-104; and No. 4:21-cv-1521—should be remanded to the state courts of
Chambers, Jefferson, and Liberty Counties from which they were removed.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	memorandum 	and
recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this ___ day of January 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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