Nimco Real Estate Associates, LLC, et al v. Nashua, NH, City of, et al

Filing 42

///ORDER denying 38 Motion for Reconsideration. Re: 36 Order on Motion to Dismiss. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Nimco Real Estate
Associates, et al.
v.

Civil No. 16-cv-406-JD
Opinion No. 2017 DNH 080

Gregory G. Nadeau, et al.

O R D E R
The court granted the defendants’ motions to dismiss on
March 23, 2017, and judgment was entered the next day.

The

plaintiffs move for reconsideration of the order granting the
motions to dismiss, arguing that the court erred in concluding
that no private right of action exists under Subchapter II of
the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (“URA”), 42 U.S.C. §§ 4621-4638.1

The

defendants object.

Standard of Review
The plaintiffs move for reconsideration under Federal Rules
of Civil Procedure 59 and 60.

Because the plaintiffs do not

cite a particular part of Rule 60, they appear to seek
reconsideration under Rule 59(e).

1

The URA is divided into Subchapters I, II, and III.

“[R]evising a final judgment is an extraordinary remedy and
should be employed sparingly.”

Ira Green, Inc. v. Military

Sales & Serv. Co., 775 F.3d 12, 27 (1st Cir. 2014).

Relief

under Rule 59(e) is available “only when the original judgment
evidenced a manifest error of law, if there is newly discovered
evidence, or in certain other narrow situations.”

Biltcliffe v.

CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014).

A party

cannot succeed on a motion for reconsideration by “advanc[ing]
arguments it should have developed prior to judgment” or by
“regurgitat[ing] old arguments previously considered and
rejected.”

Id. (internal quotation marks omitted).
Discussion

The plaintiffs contend that, contrary to the court’s order
granting the defendants’ motions to dismiss, a private right of
action exists under Subhapter II of the URA, specifically
§ 4622.

They argue that the court erroneously relied on

reasoning from cases that considered whether a private right of
action exists under Subchapter I and III of the URA, rather than
Subchapter II; that the court did not consider whether a private
right of action existed under § 4622; and that the provisions of
§ 4622 provide such a right.

In support, they distinguish some

of the cases the court cited in the analysis of whether a
private right of action exists.
2

A.

Gonzaga Standard
In the prior order granting the defendants’ motions to

dismiss, the court first examined the standard for determining
whether a private right of action exists:
It is undisputed that the URA does not expressly
provide a private right of action. The plaintiffs
argue, nevertheless, that they are entitled to
assistance and benefits under § 4622 and § 4630 as
“displaced persons.” They urge the court to find that
§ 4622 and § 4630, when read together, imply a private
right of action.
In Gonzaga v. Doe, 536 U.S. 273, 282-84 (2002),
the Supreme Court clarified and tightened the test
used to determine whether federal legislation
conferred individual rights that could be enforced
through an implied cause of action and under 42 U.S.C.
§ 1983. The Court explained that in determining both
whether a statutory violation could be enforced
through § 1983 and whether a private right of action
could be implied from a statute the court “must first
determine whether Congress intended to create a
federal right.” Id. at 283. To meet that
requirement, the statute must grant rights that are
“‘phrased in terms of the persons benefitted’” and,
for purposes of an implied right of action, the
statute must “manifest[] an intent ‘to create not just
a private right but also a private remedy.’” Id. at
284 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677,
692, n.13 (1979), and Alexander v. Sandoval, 532 U.S.
275, 286 (2001)). The Court acknowledged that some
language in prior opinions, including Blessing v.
Freestone, 520 U.S. 329, 340-41 (1997) and Wilder v.
Va. Hosp. Ass’n, 496 U.S. 498, 509 (1990), might have
suggested a less stringent standard.
Therefore, to determine whether a federal statute
confers an implied right of action, “the key inquiry
is whether the statute is ‘phrased in terms of the
persons benefitted’ ‘with an unmistakable focus on the
benefited class.’” City of Portsmouth, R.I. v. Lewis,
813 F.3d 54, 62 (1st Cir. 2016) (quoting Gonzaga, 536
3

U.S. at 284). In addition, courts must consider
“whether the statute is worded in terms of government
policy and practice or individual entitlements, and
whether Congress provided alternate mechanisms for
enforcing the statute.” City of Portsmouth, 813 F.3d
at 62.
Order, doc. no. 36, at *16-*18.

For purposes of the motion for

reconsideration, the plaintiffs do not dispute that Gonzaga
provides the correct standard.
B.

Private Right of Action
In the prior order, the court acknowledged the plaintiffs’

theory and the support they offered for their theory that a
private right of action exists under the URA:
The plaintiffs argue that they are entitled to
enforce rights conferred in Chapter II of the URA,
specifically § 4622 and § 4630. They argue that the
policy of the URA “is directed at fair treatment of
persons or businesses displaced by federal or
federally funded projects” and rely on Pou Pacheco v.
Soler Aquino, 833 F.2d 392, 400 (1st Cir. 1987), to
support the claim.
Pou Pacheco, however, was decided before the
Supreme Court addressed the standard for determining
whether a statute confers an implied right of action
in Gonzaga. Contrary to the plaintiffs’
interpretation, the court in Pou Pacheco did not
follow the more stringent test required by Gonzaga.
See Delancey v. City of Austin, 570 F.3d 590, 594 n.7
(5th Cir. 2009). Instead of determining whether
specific provisions in Chapter II of the URA were
phrased in terms of the persons benefitted with an
unmistakable focus on the benefitted class, as is now
required, the court emphasized the policy of the URA.
The court also did not examine whether Congress had
provided alternative mechanisms for enforcement.

4

Order, doc. no. 36, at *18.

The plaintiffs now concede that Pou

Pacheco was not decided under the Gonzaga standard.
The court explained that courts which have considered the
issue of a private right of action under the URA, using the
Gonzaga standard, have concluded that no such right exists:
Courts that have considered whether the URA
confers an implied right of action under the Gonzaga
test have determined that no private right of action
exists. See, e.g., Clear Sky Car Wash LLC v. City of
Chesapeake, 743 F.3d 438, 443-44 (4th Cir. 2014);
Delancey, 570 F.3d at 594-95; Osher v. Land Clearance
for Redevelopment Auth., 2016 WL 7474990, at *2-*3
(E.D. Mo. Dec. 29, 2016) (citing cases). More
specifically, Chapter II of the URA, which includes
the sections cited by the plaintiffs in their
objection to the motion to dismiss, has been construed
not to confer an implied right of action.2 Clear Sky
Car Wash, LLC v. City of Chesapeake, Va., 910 F. Supp.
2d 861, 875–79 (E.D. Va. 2012). The plaintiffs cite
no case decided after Gonzaga that has found an
implied private right of action under the URA.
Order, doc. no. 36, at *18-*19.

The court found that the

reasoning in all cases that have addressed the private right of
action under the URA was persuasive and then applied the Gonzaga

“The URA consists of three subchapters. Subchapter I
(§§ 4601-4605) is entitled ‘General Provisions.’ Subchapter II
(§§ 4621-4638) is entitled ‘Uniform Relocation Assistance,’ and
relates to moving expenses and replacement housing for
homeowners and tenants who are displaced by federal land
acquisition. Subchapter III (§§ 4651-4655), . . . is entitled
‘Uniform Real Property Acquisition Policy.’” Pacific Shores
Prop. Owners Ass’n v. Fed. Aviation Admin., 2014 WL 985960, at
*7 (N.D. Cal. Mar. 7, 2014).
2

5

analysis to the language in § 4622 and § 4630, particularly
citing the district court decision in Clear Sky Car Wash:
The reasoning in the cases which have decided
that the URA does not confer a private right of action
is persuasive. The two statutes the plaintiffs rely
on, § 4622 and § 4630, impose duties on “the head of
the displacing agency” and “the head of a Federal
agency” but do not focus on the persons who might be
benefitted by the implementation of those duties.3 See
Clear Sky, 910 F. Supp. 2d at 877-78. As such,
neither § 4622 nor § 4630 confers a private right of
action.
In addition, other means are available to enforce
the URA. A disappointed applicant for benefits must
seek review from the head of the federal or state
agency with authority over the project. § 4633(b)(3).
See Clear Sky, 910 F. Supp. 2d at 882. Then, if
necessary, the applicant can challenge a federal
agency’s final action under the URA through the
Administrative Procedures Act (“APA”), which further
undermines an implied right of action. Alamo Aircraft
Ltd. v. City of San Antonio, 2016 WL 5720860, at *2
(W.D. Tex. Sept. 30, 2016); Clear Sky, 910 F. Supp. 2d
at 879. The plaintiffs did not allege a claim under
the APA, which they confirm in their objection to the
motion to dismiss.
The NHDOT is the state agency that had authority
over the project in this case. New Hampshire provides
for “equitable treatment of persons displaced as a
direct result of programs or projects undertaken by a
state agency.” RSA 124-A:1. Displaced persons are
entitled to reasonable expenses incurred in moving,
losses of “personal property as a result of moving or
discontinuing a business,” expenses incurred in
locating a replacement property, and expenses incurred
in reestablishing a business. RSA 124-A:3. RSA
As an example, in Gonzaga, the Court explained that the
language in Titles VI and IX was “individually focused” because
those statutes state: “No person . . . shall . . . be subjected
to discrimination,” while unfocused language directs an agency
to do something that will confer a benefit. Gonzaga, 536 U.S.
at 287.
3

6

chapter 124-A also provides a process for review of
benefits decisions through rule-making by the state
agencies. RSA 124-A:9. The NHDOT has provided a review
process by promulgating regulations for that purpose,
but the plaintiffs did not pursue the review process.
Order, doc. no. 36, at *19-*21.

Based on that analysis, the

court concluded that “there is no private right of action
implied by the URA and, more specifically, no private right of
action under § 4622 and § 4630.

As a result, the plaintiffs

have not alleged claims under the URA in Counts I, II, III, VI,
and VII.”

Order, doc. no. 36, at *21.

The plaintiffs charge that the court erroneously relied on
Clear Sky Car Wash LLC, 743 F.3d at 443-44, Delancey, 570 F.3d
at 594-95, and Osher, 2016 WL 7474990, at *2-*3, because those
cases do not address Chapter II or § 4622 of the URA.4

The

plaintiffs failed to notice the distinction between the district
court and circuit court decisions in Clear Sky Car Wash.

The

plaintiffs’ attempt to distinguish Delancey, because the court

The plaintiffs’ objection to Osher is provided in a
footnote, which states that the court in Osher only considered
§ 4602 and § 4651. The plaintiffs are mistaken. The court in
Osher first determined that the URA does not provide an express
right of private action, citing § 4602 abd § 4651, and then
continued on to consider whether an implied right of action
exists, citing § 4633 and several cases including Delancey and
the district court decision in Clear Sky Car Wash, both of which
considered whether an implied right of action exists under
Subchapter II of the URA.
4

7

considered whether a private right of action existed under a
different section of Subchapter II, is not persuasive.
1.

Clear Sky Car Wash

In Clear Sky Car Wash, the City of Chesapeake planned a
highway project that required acquisition of additional land,
including the plaintiffs’ property.

910 F. Supp. at 866.

When

the plaintiffs and the city failed to reach an agreement for the
purchase, the city filed a “Certificate of Take” in state court.
Id. at 868.

The plaintiffs removed the action to federal court

where they also filed a claim alleging that the city violated
their rights under the URA, along with constitutional claims.5
Id. at 869.
The plaintiffs asserted that the city had violated the URA
and that they had rights under the URA enforceable in federal
court.

Id. at 873.

The district court considered whether a

private right of action existed under either Subchapter II or
Subchapter III of the URA.

Id. at 874.

The court first

concluded that no private right of action existed under
Subchapter III, pertaining to land acquisition policies, in
light of the requirements of Gonzaga.

Id. at 874-75.

The district court then considered whether a private right
The federal court remanded the “Certificate of Take” action
to state court, and the case proceeded on the plaintiffs’ URA
and constitutional violation claims.
5

8

of action was implied in Subchapter II, specifically §§ 4622 and
4625.

Id. at 875.

Applying the Gonzaga analysis, the court

concluded that the relocation benefits provided under the URA,
§ 4622 and § 4625, are not enforceable through a private right
of action.

Id. at 877-78.

On appeal, the plaintiffs challenged the city’s valuation
of their property, the city’s negotiation with them, and the
city’s “quick take” of the property.
F.3d at 440 and 442.

Clear Sky Car Wash, 743

With respect to the third issue, the

plaintiffs argued that the city’s “quick take” violated the
acquisition policies in § 4651 of the URA, Subchapter III.
Importantly, the plaintiffs did not appeal that part of the
district court’s decision that held there was no implied right
of action under Subchapter II of the URA.
The Fourth Circuit considered “whether the URA creates an
implied right of action for enforcement of the policies mandated
by § 4651.”

Clear Sky Car Wash, 743 F.3d at 443.

The court

applied the Gonzaga test and concluded that no private right of
action existed.

Id. at 444.

district court’s decision.

The Fourth Circuit affirmed the

Id. at 445.

In summary, the district court in Clear Sky Car Wash held
that no implied private right of action exists under Chapter II
of the URA, § 4622 or § 4625.

The Fourth Circuit held that no

9

implied private right of action exists under Subchapter III of
the URA and affirmed the district court’s decision without
addressing the issue under § 4622 because that was not raised on
appeal.

The plaintiffs here have shown no legal error based on

the court’s application of the Clear Sky Car Wash district court
decision and the Fourth Circuit’s decision.
2.

Delancey

In Delancey, the plaintiff appealed the district court’s
conclusion that the URA does not provide a private right of
action for money damages for a claim that the defendant failed
to provide relocation assistance under Subchapter II of the URA.
570 F.3d at 591-92.

The Fifth Circuit applied the Gonzaga

analysis and agreed with the district court that § 4625 does not
provide a private right of action.

Id. at 594-95.

The

plaintiffs here contend that any reliance on Delancey
constitutes a manifest error of law because the court in
Delancey did not consider § 4622.
Sections 4622 and 4625 are both part of Subchapter II of
the URA, which is titled “Uniform Relocation Assistance.”
Section 4622 pertains to moving and related expenses.

Section

4625 pertains to relocation planning, assistance coordination,
and advisory services.

10

Both statutes state the government policy to be served and
require “[t]he head of any displacing agency” to do certain
things that are provided in the statutes.

§§ 4622(a) & 4625(b).

As the court in Delancey explained, that language focuses on the
person regulated rather than individuals who might be
benefitted, which is insufficient to create a private right of
action.

570 F.3d at 594-95.

The plaintiffs’ theory about

policymaking authority is not supported by the plain language of
the statutes and does not undermine the application of the
Gonzaga test in this case.

Therefore, the analysis in Delancey

provided appropriate guidance for the court’s analysis in the
order granting the defendants’ motions to dismiss.
The plaintiffs have shown no ground for reconsideration of
the order granting the defendants’ motions to dismiss.
Conclusion
For the foregoing reasons, the plaintiffs’ motion for
reconsideration (document no. 38) is denied.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
April 24, 2017
cc: Jared Joseph Bedrick, Esq.
Steven A. Bolton, Esq.
11

Mark S. Bourbeau, Esq.
Matthew T. Broadhead, Esq.
Stephen G. LaBonte, Esq.
Celia K. Leonard, Esq.
Terry L. Ollila, Esq.

12