Clear Sky Car Wash LLC et al v. City of Chesapeake Virginia et al
Filing
47
OPINION AND ORDER granting 24 Motion to Dismiss for Failure to State a Claim; granting 24 Motion to Dismiss for Lack of Jurisdiction; granting 29 Motion to Dismiss for Lack of Jurisdiction; granting 31 Motion to Dismiss for Failure to State a Claim; granting 31 Motion to Dismiss for Lack of Jurisdiction; granting 7 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Lack of Jurisdiction; granting 12 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Mark S. Davis and filed on 12/18/12. (jcow, )
FILED
UNITED
STATES
DISTRICT
EASTERN DISTRICT
COURT
OF VIRGINIA
DEC 1 8 2012
Norfolk Division
CLERK, US DISTRICT COURT
CLEAR SKY CAR WASH,
NORFOLK, VA
LLC
et al.,
Plaintiffs,
Civil Action No.
v.
2:12cvl94
CITY OF CHESAPEAKE,
VIRGINIA,
et al..
Defendants.
OPINION AND
This
motions
matter
to
is
currently
dismiss:
(1)
before
Defendants
("Greenhorne") , Thomas
Copeland
Daniel
Jones's
to
Civil
Procedure
Motion
12(b)(6)
and 12(b)(6)
to
Dismiss
and
Federal
(Docket No.
("Gillespie")
Motion
to
Civil Procedure 12(b)(1)
of
pursuant
Local
12);
(3)
Dismiss
to
Federal
12(b)(6)
(Docket No.
Rules
29);
of
and
(5)
7
(Docket
No.
and
of
7);
("City") Motion to
Procedure
12(b)(1)
Carole Gillespie's
to
Federal
Rules
of
and upon the principle of
Defendant United States
("USDOT")
Civil
Inc.
Rule
Defendant
and 12(b)(6)
O'Mara,
Federal
Civil
pursuant
several
to
Rule
of
&
on
Evelyn Jones,
Virginia's
Rules
Transportation's
pursuant
Court
Greenhorne
Qualified Immunity (Docket No. 24) ; (4)
Department
the
("Copeland"),
(2) Defendant City of Chesapeake,
Dismiss pursuant
ORDER
Motion
Procedure
to
Dismiss
12(b)(1)
and
Defendant Virginia Department
of
Transportation's
Federal
Rules
No.
31) .
for
of
decision.
("VDOT")
Civil
Motion
Procedure
to
12(b)(1)
For
the
reasons
12(b)(6)
to
(Docket
stated herein,
Court
GRANTS
FACTUAL HISTORY1
Plaintiffs Cleary Sky Car Wash LLC
Wash
the
to dismiss.
I.
Car
and
pursuant
The motions have been fully briefed and are now ripe
the above motions
Sky
Dismiss
Operating
LLC
("Clear
("Clear Sky")
Sky
and Clear
Operating")
are
each
limited liability companies duly authorized by the Commonwealth
of Virginia.
Plaintiffs Samuel Jacknin ("Jacknin")
Einsmann
("Einsmann")
managers
of
are
Plaintiffs
Additionally,
Plaintiff
co-founders,
Clear
Sky
Jacknin acts
and Charles
co-organizers,
and
as
Clear
the
Sky
Sky
business
and
Clear
located
at
Sky
Operating
920
Great
have
Bridge
co-
Operating.
managing agent
both Plaintiffs Clear Sky and Clear Sky Operating.
Clear
and
operated
Boulevard,
of
Plaintiffs
a
car
wash
Chesapeake,
1 The facts recited here are drawn from Plaintiff s' Complaint and are
assumed true for the purpose of deciding the motions currently before
the Court.
They are not to be considered factual findings for any
purpose other than consideration of the pending motions. See Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009) ("[I]n evaluating a Rule 12(b)(6) motion to dismiss, a
court accepts all well-pled facts as true and construes these facts in
the light most favorable to the plaintiff in weighing the legal
sufficiency of the complaint."); see also Clatterbuck v. City of
Charlottesville, 841 F. Supp. 2d 943, 948 n.3 (W.D. Va. Jan. 18, 2012)
(citing Warth v. Seldin, 422 U.S. 490, 501 (1975)) ("As with a motion
to dismiss pursuant to 12(b)(6), in considering a motion to dismiss
pursuant to Rule 12(b) (1) a court must accept as true all material
factual allegations in the complaint and must construe the complaint
in favor of the plaintiff.")
Virginia
since
2008.
wash equipment,
Plaintiff
Clear
Sky owns
the
land,
car
and all other aspects of the car wash business
located at 920 Great Bridge Boulevard ("Clear Sky Car Wash").
Defendant City is
Commonwealth
of
a duly incorporated municipality of
Virginia.
Defendant
Carole
Right of Way Manager for Defendant City.
is
a
Maryland
Defendants
employees
corporation
Copeland,
of
Defendant
authorized agency of
and
through
Whirley,
Sr.
Evelyn
its
retained
Jones,
Greenhorne.
Gillespie
of
the
Defendant Greenhorne
by
and
Defendant
Daniel
Defendant
Highways,
City.
Jones
VDOT
the Commonwealth of Virginia,
Commissioner
is
the
is
a
are
duly
operated by
presently
Gregory
Defendant USDOT is a duly organized agency of the
United States government,
operated by and through Secretary Ray
LaHood.
On or about November 26,
approve
a
project
widen
Boulevard
and
Branch of
the Elizabeth River
project
to
to
replace
of Defendant
the
2008,
Defendant
United
States
Route
Steel
Bridge
over
("Project").
City resolved to
17/Dominion
the
Southern
The Project was a
VDOT managed under contract by Defendant
City, including Defendant City's Right of Way Manager, Defendant
Gillespie.
Defendant
including Defendants
City
Copeland,
retained
Defendant
Evelyn Jones,
Greenhorne,
and Daniel Jones,
to perform right of way acquisition and related services for the
Project.
The Project received funding from Defendant City,
the
Commonwealth
such
of
funding,
Virginia,
the
and
Project
the
has
federal
government.
Despite
suffered
funding
allegedly
shortfalls requiring Defendant City to seek various loans and to
consider
alternative
sources
of
funding,
such
as
the
implementation of tolls.
On
or
about
approval of the
VDOT's
Chief
February
17,
2009,
Defendant
Project's major design features
Engineer.
Such design
features
City
received
from Defendant
contemplated
the
fee simple use of all of Plaintiff Clear Sky's land at 920 Great
Bridge
Boulevard
("Land").
Defendant
City
began
parcels of land for the Project in June 2010.
acquiring
Defendant City
first contacted Plaintiffs concerning Plaintiff Clear Sky's Land
in
October
appraiser,
2010.
Brian
Plaintiffs
Dundon
permitted
("Dundon"),
to
Defendant
enter
the
Land
Plaintiffs provided additional information to Dundon.
appraisal
("Dundon Report")
appraisal
calculated
using
square
VDOT's
Form").
footage
Executive
the
was signed on April 16,
value
of
valuation,
Summary
Plaintiff
as
Form,
provided
RW-45B
and
Dundon's
2011.
Clear
for
City's
Sky's
Such
Land
in Defendant
("Executive
Summary
The Dundon Report valued Plaintiff Clear Sky's Land at
$13 per square foot, for a total value of $416,728 based on the
Land's
32,056
square
footage.
According to the Complaint,
the same day that Dundon submitted his report, Defendant
advised
Plaintiffs,
without
explanation,
that
it
on
City
required
a
second appraisal.
Appraisers
Bradley R.
Stankus submitted the second appraisal
about
June
value
of
13,
2011.
Plaintiff
The
Clear
valued such Land at
Sanford
Sky's
Neither appraisal
method
valuing
of
valuation—was
more
("Sanford Report")
Report
Land
on or
also
calculated
the
square
by
$17 per square foot,
$544,952.
Sanford and David L.
footage,
but
for a total value of
considered whether an alternative
Plaintiff
Clear
appropriate
than
Sky's
the
property—pad
square
foot
site
valuation
provided for by Defendant VDOT's Executive Summary form.
On or about August 9,
Dundon
Report
acquisition.
and
2011,
approved
Defendant Gillespie signed the
Plaintiff
Sanford Report
appraiser and
Report
for
Sky's
Land
for
Defendant Greenhorne communicated such information
to Plaintiffs by letter the next day.
the
Clear
that
use
in
Such letter stated that
had been rejected by an independent review
the
same appraiser had approved the
determining
the
market
value
of
Dundon
Plaintiff
Clear Sky's Land and just compensation for the Land.
On or about August 30, 2011, Plaintiffs notified Defendants2
of
their
concerns
regarding Defendant
Greenhorne's
letter,
and
asked ten questions regarding such letter and the Dundon report.
2 It is unclear to whom such letter was sent, as Plaintiffs refer in
this section of the Complaint to "Defendants" generally with little to
no additional specification.
However, this section does contain some
references
to
Defendants
City,
Greenhorne,
Daniel
Jones,
and
Gillespie, and to Dundon.
These references, as well as the context of
the Complaint's discussion, lead to the conclusion that "Defendants"
refers generally to Defendant City and its agents and employees.
Such questions included:
value
an
actual
actual
(1)
whether Defendants would assess and
replacement
replacement;
(2)
site
why
the
and
existing
review
equipment
appraiser
had
for
decided
that the Sanford Report would not be used at all and was a less
appropriate representation of
Report;
just compensation than the Dundon
(3) why the Dundon Report and Defendant City used square
footage valuation instead of pad site
evaluation;
the
"based
Dundon
Report
depreciation
was
on
and
an
(4)
IRA
why
cost
recovery schedule ... accelerated over
[seven]
years for business
tax
on
economic
deduction
purposes"
Clear Sky Car Wash.
Defendant
City,
discussed
instead
(Compl.
of
through Defendants Greenhorn and Daniel
Jones,
with
respond to Plaintiffs' questions.
Plaintiffs'
Defendant
Plaintiffs on or about October 19,
expressed
their
response on October 24, 2011.
on November 14,
2011
an internal meeting.
on November 17,
Plaintiffs
and
agreed
to
Plaintiffs agreed to wait for
After twice reiterating its intent to respond to
questions,
Plaintiffs
for
2011,
letter
U 112).
life
On August 31,
Plaintiffs'
such answers.
the
that
City emailed
its
response
to
2011.
dissatisfaction
with
such
Defendant City advised Plaintiffs
it would address
such concerns after
Defendant City provided a lengthy response
2011.3
In such response,
Defendant City noted
3 On the same date, Plaintiffs wrote to Defendant City's Mayor Krasnoff
asking him to intercede and to direct Defendant City to comply with
6
its obligation to follow state and federal laws and regulations
in
its
efforts
noting,
to
obtain
Defendant
City
relocation benefits,
and payment of
application
continued
and
During
had
City's
such
that,
Sky's
if
Land.
In
Plaintiffs
so
wanted
such relocation benefits and noted that no such
been
January
Defendant
stated
Clear
they were required to apply for calculation
made.
corresponding
into
Plaintiff
2012
Plaintiffs
throughout
regarding
appraisal
of
correspondence,
and
November
Defendant
City
December
2011
concerns
with
and
Plaintiffs'
Plaintiff
Defendant
Clear
Tim
Sky's
Copeland
Land.
advised
Plaintiffs that he had conducted the appraisal reviews and that
he also had oversight responsibility for Defendant Greenhorne's
involvement
in
January
2012,4 Defendant
27,
calculated
just
Project
negotiations
original
Report."5
Following
acquisitions.
City advised Plaintiffs
compensation
unchanged,
and
calculations
at
$2.15
and
the January 27,
million
analysis
2012
On
that
"based
from
letter,
the
it
on
Dundon
Plaintiffs
its legal obligations relating to Plaintiffs'
relocation and to
provide answers to Plaintiffs' questions.
Plaintiffs reminded Mayor
Krasnoff
that
Plaintiffs
had
refrained
from
hiring
lawyers
while
awaiting Defendant City's responses to their questions.
4 The Court notes that the dates provided in this section of the
Complaint are inconsistent with respect to the year in which the
alleged events occurred.
The context of the Complaint leads to the
conclusion that all events described in Paragraphs 138 through 154 of
the Complaint occurred in 2012.
Therefore, the Court has adjusted the
dates accordingly.
5 It is
includes
unclear what the $2.15 million just compensation
in light of the prior allegation that the Dundon
figure
Report
retained counsel who began communicating with Defendant City on
behalf
of
Defendant
appeal
Plaintiffs.
Plaintiffs'
City's
Deputy
Defendant
City
City's
counsel
Attorney
"calculation
that
of
was
advised
Plaintiffs
benefits"
by
could
and
was
additionally directed not to communicate directly with Defendant
City's employees and agents.
further advised Plaintiffs'
On March 13, 2012,
Defendant City
counsel in writing that it would not
discuss settlement or take further action until having received
an appraisal from Plaintiffs.
On March
22,
2012,
Defendant
City
filed a
Take in the Circuit Court for the City of
defeasible
Sky.
fee
interest
On March 30,
directly
to
in
the
Land
Certificate
of
Chesapeake to gain a
owned
by
Plaintiff
Clear
2012, Defendant City issued a written demand
Plaintiffs,
and
not
to
Plaintiffs'
counsel,
requiring them to vacate and turn over possession of such Land
no later than May 1, 2012.6
calculated
the
value
of
Plaintiff
Clear
Sky's
Additionally,
the Court notes the pleaded
Greenhorne and Daniel Jones had previously
Land
at
$416,728.
facts that Defendants
advised Plaintiffs on
November 3, 2011 that the land valuation from the Sanford Report
should replace the land valuation from the Dundon Report;
that
Defendant City had previously agreed in a meeting on December 20, 2011
that the Dundon Report's depreciation calculation was in error and
should be changed in light of the condition of Clear Sky Car Wash; and
that Defendant City had further advised that comparable properties
outside of the area should be used, in light of certain problems with
the comparable properties identified in the Dundon Report.
6 Additionally, on April 10, 2012, Plaintiffs' site employee discovered
an employee or agent of Defendant City on Plaintiff Clear Sky's
property inspecting buildings and equipment without authorization.
When asked what he was doing, the employee said that he was inspecting
8
II.
On April
11,
PROCEDURAL
2 012,
Plaintiffs
HISTORY
removed
the
Certificate
of
Take to this Court7 and simultaneously filed the separate instant
action
against
Defendants,
comply with the
Acquisitions
Assisted
Programs
allege
statutory
under
United
States
under
the
Policies
Act
six Counts:
Violations
("URA")
and
Defendants
the
Fifth
Fourteenth
in
and
of
failed
(3)
to
Rights
§§ 1983,
(conspiracy),
Breach of Contract; and (6)
URA;
1988
(2)
the
relief
under
to
all
the
Violations
States
42
(attorneys'
against
Process
United
Equitable Estoppel.
injunctive
Due
Amendments
Violations
and
violated
Plaintiffs
Protection
to
Federally
so,
rights.
the
Equal
and
doing
Fourteenth
Amendment
(4) Civil
and
Federal
and,
(1) Violations
Constitution;
1985
for
constitutional
Constitution;
declaratory
that
federal Uniform Relocation Assistance and Real
Property
Plaintiffs'
alleging
U.S.C.
fees);
(5)
Plaintiffs seek
Defendants,
as
to determine whether rats were present in the building that would exit
when the building on Plaintiff Clear Sky's Land was razed.
7 By
Opinion
remanded
the
and
Order
Certificate
entered
on
of
back
Take
September
to
the
5,
2012,
Circuit
this
Court
Court
for
the
City of Chesapeake on the ground that this Court lacked subject matter
jurisdiction over a condemnation proceeding instituted in state court
and removed to federal court without a necessary federal question or
individual right of action.
City of Chesapeake, Va. v. Clear Sky Car
Wash, LLC, No. 2:12cvl95, 2012 WL 3866508 (E.D. Va. Sept. 5, 2012).
In so holding, the Court specifically addressed arguments raised in
the briefs for the motions to dismiss currently before the Court in
this case.
As such, the Court will refer to its prior Opinion and
Order ("Remand Order") and the findings contained therein throughout
this Opinion and Order.
well
as
damages
judgment
of
not
interest,
less
and
than
$9
attorneys'
million,
fees
as
pre-
and
all
Defendants
to
post-
except Defendant VDOT.
All
named
Plaintiffs'
Defendants
Complaint.
have
filed
motions
Defendants Greenhorne,
to
dismiss
Copeland,
Evelyn
Jones,
and Daniel Jones filed their motion to dismiss on May 14,
2012.
(Docket
No.
7).
Defendant
dismiss on May 18, 2012.
City
(Docket No.
12).
filed her motion to dismiss on June 14,
Defendants
USDOT
dismiss
on
June
motions
have
Court's
and
review.
25,
been
VDOT
filed
2012.
(Docket
briefed
Because
all
of
29,
are
the
motion
(Docket No.
respective
Nos.
and
its
31).
now
under Federal
12(b)(1),
considered all
the
related briefs
Court
in
has
reaching
its
Rule
of
such
for
this
motions
seek
Civil
to
dismiss
and the
Procedure
such motions
decision
to
All
ripe
pending
24).
motions
dismissal under Federal Rule of Civil Procedure 12(b)(6)
majority seek dismissal
to
Defendant Gillespie
2012.
their
fully
filed
and
their
each count
and claim in this matter.
III.
A.
LEGAL
STANDARD
Subject Matter Jurisdiction
Defendants City, Gillespie, USDOT, and VDOT seek to dismiss
all
of
Plaintiffs'
Procedure
12(b)(1),
claims
which
pursuant
to
permits
a
dismissal of a claim due to the court's
10
Federal
Rule
defendant
to
of
move
Civil
for
lack of subject matter
jurisdiction. A.W.
F.
Supp.
29,
2d 219,
31) . Having
ex rel.
221
Wilson v. Fairfax Cnty.
(E.D.
filed
Va.
the
2008) ; see
instant
of
proving
Richmond,
that
this
Fredericksburg
945 F.2d 765,
768
over
addition
each
relief."
Fed.
a
thereby
12,
has
subject
Potomac
R.R.
seeking
matter
Co.
v.
jurisdiction.
United
States,
complaint
Claim
subject
must
matter
contain
"a
jurisdiction
short
and plain
claim showing that the pleader is entitled to
R.
Civ.
P.
8(a)(2).
If
a
plaintiff
fails
P.
12(b)(6).
to
the complaint is subject to dismissal for
failing to state a claim upon which relief can be granted.
Civ.
to
1991).
establishing
meet this requirement,
R.
24,
Plaintiffs bear the burden
Failure to State a
to
claim,
statement of the
&
(4th Cir.
B.
In
Court
Bd. , 548
(Docket Nos.
action,
invoke the jurisdiction of the Court,
Sch.
Fed.
Defendants have moved for dismissal of all
claims under Rule 12(b)(6).
(Docket Nos.
7,
12,
24,
29,
31).
A
motion to dismiss for failure to state a claim should be granted
if the complaint does not allege "enough facts to state a claim
to relief that is plausible on its
v.
Twombly,
550
U.S.
544,
570
face."
(2007) .
Bell Atlantic Corp.
A
claim
is
plausible
"when the plaintiff pleads factual content that allows the court
to
draw
the
reasonable
for the misconduct
678
(2009).
"The
inference
alleged."
that
the
Ashcroft v.
plausibility
11
standard
defendant
Iqbal,
is
is
liable
556 U.S.
not
akin
662,
to
a
'probability
requirement, '
more
than
possibility that a defendant has acted unlawfully."
Id.
While
a
complaint,
it
the
merits
12(b)(6)
on
a
of
judge's
a
claim,
tests
550 U.S.
319, 327
(1989)).
or
for
the
a
sheer
sufficiency
Id.
of
at 556
of
a
a
alleged
that
can
in
be
allegations."
of
980 F.2d 943,
complaint's
...
defenses."
952
(4th Cir.
dismissals based
factual
allegations."
(quoting Neitzke v. Williams,
490 U.S.
A complaint may therefore survive a motion to
'that a recovery is very remote and
(quoting Scheuer v.
the
232,
236
a court should "assume the truth of
Accordingly,
facts
applicability
does not countenance
dismiss "even if it appears
unlikely.'"
the
v. Martin,
disbelief
Twombly,
P'ship,
asks
"does not resolve contests surrounding the facts,
"Rule 12(b)(6)
(1974)).
it
motion
Republican Party of N.C.
1992).
but
all
complaint
proved,
180
unwarranted inferences,
Mkts.,
(4th Cir.
the facts alleged is assumed,
conclusions drawn from the
and the
consistent
Eastern Shore
213 F.3d 175,
Rhodes,
416 U.S.
existence
with
Inc.
v.
2000).
the
J.D.
of
any
fact
complaint's
Assocs.
Ltd.
While the truth of
courts are not bound by the "legal
facts"
and
"need not accept as
unreasonable conclusions,
true
or arguments."
Id.
Pursuant
are
submitted
12(b)(6)
to
in
motion,
Rule
12(d),
conjunction
the
court
if
matters
with,
must
12
or
either
outside
in
the
pleadings
opposition
exclude
such
to,
a
materials
from
consideration
summary
or
judgment.
the
converted,
convert
Fed.
court
R.
the
Civ.
must
motion
P.
afford
into
a
If
the
12(d).
the
parties
motion
motion
a
A.
Federal
is
reasonable
opportunity to present additional pertinent materials.
IV.
for
Id.
DISCUSSION
Subject Matter Jurisdiction Generally
district
courts
matter jurisdiction.
555 F.3d 337, 347
are
courts
of
(4th Cir. 2009)
Allapattah Servs. , Inc. , 545
subject
Vuyyuru v.
United States ex rel.
limited
Jadhav,
(citing Exxon Mobile Corp.
U.S.
546,
552
(2005)).
v.
They have
authority to exercise "only the jurisdiction authorized them by
the
United
States
Constitution
(citing Bowles v. Russell,
forth
a
number
assert
this
claims
and
causes
pursuant
jurisdiction
over
in
the
subject
of
federal
statute."
to
(1)
28
jurisdiction
Original
U.S.C.
rights
§
actions
over
1331;
to
their
question
(2)
pursuant
they
Original
28
U.S.C.
(3) Original jurisdiction over claims against the United
Original
jurisdiction
over
condemnation
United States pursuant to 28 U.S.C.
review
which
federal
States not exceeding $10,000 pursuant to 28 U.S.C.
(4)
Id.
Plaintiffs set
upon
Complaint
matter
action:
civil
by
551 U.S. 205 (2007)).
grounds
Court's
jurisdiction
§ 1343;
of
and
of
certain
Administrative
administrative
Procedures
Act
§ 1358;
matters
("APA"),
13
5
§ 1346(a)(2);
actions
(5)
by
the
Federal judicial
pursuant
U.S.C.
§
701
to
et
the
seg. ;
(6)
Original jurisdiction under the Declaratory Judgment Act,
U.S.C.
§§ 2201-02;
related
claims
and
(7)
pursuant
Supplemental
to
28
U.S.C.
jurisdiction
§
1367(a).
28
over
Before
considering its jurisdiction as to each alleged cause of action,
the
Court
will
address
those
alleged grounds
that
it
finds
do
not provide jurisdiction as to any claim or cause of action.
i.
Abandoned Grounds for Original Subject Matter Jurisdiction
- 28 U.S.C.
§§ 1346(a)(2),
2201-02
The Court notes that issues raised in the Complaint but not
briefed
or
argued
are
considered
abandoned.
See
Supreme Court of Appeals of W. Va., 110 F.3d 1077,
Cir.
1997)
Parnell
1082 n.5
(declining to consider a claim on the
v.
(4th
ground that
"it was abandoned when the merits of the case were litigated in
district
court").
Because
Plaintiff
fails
jurisdiction pursuant to 28 U.S.C.
§§ 1346(a)(2)
any
the
of
its
responsive
briefs
to
Court deems such grounds abandoned.8
motions
to
address
and 2201-02 in
to
dismiss,
the
Having filed the instant
8 The Court further notes that the Court would lack original subject
matter jurisdiction as a matter of law under both 28 U.S.C.
§§
1346(a)(2) and 2201-2202 had Plaintiffs not abandoned such grounds.
Although § 1346(a)(2) grants district courts original jurisdiction
over civil actions or claims brought against the United States, such
actions may "not exceed[] $10,000 in amount."
28 U.S.C. § 1346(a)(2).
Plaintiffs seek "damages in a sum not less than $9 million" as to all
Defendants except Defendant VDOT.
Thus, Plaintiffs claims against the
United States exceed $10,000, depriving the Court of original subject
matter jurisdiction pursuant to 28 U.S.C. § 1346(a)(2).
The Court
also may not exercise original jurisdiction under the Declaratory
Judgment Act, 28 U.S.C. § 2201.
The Declaratory Judgment Act is a
procedural statute that, alone, does not confer jurisdiction upon a
14
action and thereby seeking to invoke this Court's jurisdiction,
Plaintiffs
Richmond,
had
the
burden
of
establishing
Fredericksburg & Potomac R.R.,
abandoning the above
grounds
such
945
F.
jurisdiction.
2d at
for jurisdiction,
768.
Plaintiffs
By
have
failed to meet their burden as to those grounds and jurisdiction
will not lie under 28 U.S.C.
ii.
§§ 1346(a)(2)
and 2201-02.
Jurisdiction over Condemnation Proceedings Pursuant to 28
U.S.C.
Plaintiffs
U.S.C.
§
have
1358.
pled
Section
this
1358
§
1358
Court's
gives
jurisdiction
district
courts
under
28
"original
jurisdiction of all proceedings to condemn real estate for the
use of
the
United States or its
U.S.C.
§ 1358.
The instant action,
to condemn real estate.
injunctive,
and
Rather,
monetary
allegedly available
court.
616, 619
(4th Cir. 1997)
Gibraltar,
463
relief
however,
it
is
or agencies."
a suit
related
U.S.
P.R.,
Inc.
v.
28
is not a proceeding
to
for declaratory,
certain
to Plaintiffs prior to the
district
Vacation Trust,
departments
Otoki Grp.,
"rights"
deprivation of
Inc.,
104
F.3d
(citing Franchise Tax Bd. v. Constr. Laborers
1,
16-17 n.14
(1983))
("[T]he DJA does not
provide a source of jurisdiction which is independent of substantive
federal law.").
Rather, the Act "provides an additional remedy in
cases with an independent basis of jurisdiction."
Energy Recovery,
Inc. v. Hauge, 133 F. Supp. 814, 818 (E.D. Va. 2000)
(quoting
Microstrategy, Inc. v. Convisser, et. al, No. CIV.A00-453-A, 2000 WL
554264, at *2 (E.D. Va. May 2, 2000)); see also 28 U.S.C. § 2201(a).
Thus, the Court must have before it a properly pled claim over which
it has an independent basis for exercising original jurisdiction
before it may act pursuant to the Declaratory Judgment Act.
Because
the Court finds below that no such claim has been pled, it would lack
jurisdiction to provide declaratory relief under the Declaratory
Judgment Act, had Plaintiffs not abandoned such ground.
15
their property interests
even
if
Court
within
claims
the
the
estate,"
which
jurisdiction
read
§ 1358
meaning
of
does
broadly
not,
it
under
Judiciary Act
in Clear Sky Car Wash.
enough
"proceeding
the
1358
because
intended as
was
§
a
a
Court
to
such
condemn
to
bring
real
would
"[t]his
grant
Additionally,
still
of
the
jurisdiction to
of
provision
lack
the
district courts of actions brought by the United States and not
of
actions
that
might
have
against the government."
500 F.2d 26, 28
347 F. Supp.
336
reasons,
Court finds
the
eminent
Ledford v.
(6th Cir.
(E.D.
an
1974)
Pa.
Thus,
Court
28 U.S.C.
the
may
it
lacks original
remaining
28
U.S.C.
§
subject matter
claims and causes of action
alleged
jurisdiction
causes of action are:
to
(1)
1331;
over
bases
upon
(2)
Original
jurisdiction
judicial
matters
APA,
5
jurisdiction
§ 1367(a).
for
of
certain
U.S.C.
§
over
The
exercising
administrative
701
related
Court
this
claims
or
Federal question jurisdiction pursuant
§ 1343;
the
which
Plaintiffs'
civil rights actions pursuant to 28 U.S.C.
review
For these
§ 1358.
only
exercise
brought
Of Eng'rs of U.S.,
(emphasis added).
jurisdiction over all of Plaintiffs'
pursuant to
Corps.
nexus
(citing Turtzo v. United States,
1972))
that
domain
will
et
seg;
claims
briefly
jurisdiction
(4)
pursuant
review
under
16
and
the
these
to
over
certain
(3)
Federal
pursuant
to
Supplemental
28
legal
U.S.C.
standards
grounds
before
considering its jurisdiction and the sufficiency of
Plaintiffs'
claims as to each alleged cause of action.
iii.
Federal Question Jurisdiction Pursuant to 28 U.S.C.
District
U.S.C.
§
courts
1331
Constitution,
U.S.C.
for
"of
of
or
civil
Circuit,
of
the
what
it
"[t]here
means
for
Verizon Md. , Inc.
355,
Cir.
(4th
actions
treaties
federal law."
362
jurisdiction pursuant
arising
United
to
under
28
the
States."
28
According to the United States Court of Appeals
Fourth
definition'
original
all
laws,
§ 1331.
the
have
§ 1331
Thompson, 478 U.S.
2004)
804,
v.
(quoting
808
is
an
no
'single,
action
to
Global Naps,
Merrell
(1986)).
Dow
precise
'arise
Inc.,
Pharm.
under'
377 F.3d
Inc.
v.
However,
[t]he Supreme Court has recognized § 1331 jurisdiction in a
variety of cases, such as (1) when a federal right or
immunity forms an essential element of the plaintiff's
claim; (2) when a plaintiff's right to relief depends upon
the construction or application of federal
law, and the
federal
nature
of
the
claim rests
upon a
reasonable
foundation;
(3)
when federal law creates the cause of
action;
and
(4)
when the plaintiff's right to relief
necessarily depends on resolution of a substantial question
of
Id.
iv.
federal
law.
(internal citations and quotations omitted).
Original Jurisdiction over Civil Rights Actions Pursuant to
28 U.S.C.
District
actions
recover
Courts
"authorized by
damages
for
have
law
§
original
to
injury
be
jurisdiction
commenced
caused
17
1343
"by
by
any
over
civil
any person"
act
done
to
in
furtherance of
any conspiracy mentioned in
[42 U.S.C.
§ 1985]"
and from any person who had knowledge that such an act was about
to occur and the power to prevent such act but who failed to do
so
or
otherwise
aided
§ 1343(a)(1)-(2).
The
pursuant
to
§
1343
in
providing
of
for
the
also
equitable relief
States
rights..."
protection of civil rights."
is
97,
99
(D.
original
to
Md.
to
and
of
by
any
actions
Congress
redress
Act
of
for
Congress
damages
providing
or
for
the
Id. § 1343(b) (3)- (4) .
1978) .
It
and over
Nouse v. Nouse,
provides
§ 1983
§ 1343(a) (1)- (2); see also Crosby v.
635
634,
n.5
(4th
Cir.
2011).
450
jurisdiction
civil rights
28 U.S.C.
639
to
"the jurisdictional counterpart of certain
§ 1985 conspiracy claims
F.3d
U.S.C.
jurisdiction
actions
or
post-Civil War civil rights statutes."
Supp.
42
privilege or immunity secured by the
"under any Act
Section 1343
commission.
court's
extends
United
equal
act's
district
deprivations of "any right,
Constitution
the
F.
over
claims.
City of Gastonia,
But
"[i]n
order
for
jurisdiction to exist under section 1343, a complaint must at a
minimum
seek
Nouse,
450
Dist.
Sch.
recovery
F.
Supp.
Bd.,
("[S]ection 1343
at
534
under one
99;
of
the
substantive
see also Campbell v.
F.3d
650,
653
n.3
jurisdiction is unavailable
an appropriate cause of action.
a claim under sections 1981,
In this sense,
1983,
18
Gadsden Cnty.
(5th
in
statutes."
the
Cir.
1976)
absence of
failure to state
and 1985 or other appropriate
legal
authority has
the
effect
of
depriving
federal
courts
of
subject matter jurisdiction under section 1343.").
v.
Federal Judicial Review Pursuant to 5 U.S.C.
The
APA
provides
that
because of agency action,
agency
action
U.S.C.
§ 702.
and
final
remedy
court
nature
that
are
reviewed.
are
to
has
for
judicial
which
subject
made
review
to
to
there
is
judicial
directly
"preliminary,
subject
unlawfully
suffering
other
review."
reviewable
procedural,
review when
no
5
the
final
adequate
5 U.S.C.
statute
or
intermediate"
in
agency action
is
or
by
A court engaging in judicial review pursuant to
the
authority
withheld
or
to:
"(1)
unreasonably
compel
agency
delayed;
and
findings,
based on certain findings
such action,
vi.
wrong
thereof."
unlawful and set aside agency action,
conclusions.
legal
or adversely affected or aggrieved by
entitled
not
are
Id.
APA
person
Only " [a]gency action made reviewable by statute
Actions
actions
the
is
agency action
in a
§ 704.
...
"a
§ 701 et seg.
5 U.S.C.
regarding
action
(2)
hold
and conclusions"
findings
and
§ 706.
Supplemental Jurisdiction Pursuant to 28 U.S.C.
§ 1367(a)
If a district court has original jurisdiction over a claim
in any civil action,
claims
pursuant
it may exercise jurisdiction over state-law
to
28
jurisdiction under § 1367(a)
are
so
related
to
claims
U.S.C.
§ 1367(a).
The
court's
extends only to those claims "that
in
the
19
action
within
[the
court's]
original jurisdiction that they form part of
the
same case or
controversy under Article II of the United States Constitution."
28
U.S.C.
then
§ 1367(a).
exercising
If
no
supplemental
would be improper,
valid
federal
jurisdiction,
claim
is
though
asserted,
permissible,
for "[n]eedless decisions of state law should
be avoided as a matter of comity and to promote justice between
the
parties,
by
applicable law."
(1966).
procuring
them
a
surer-footed
United Mine Workers v.Gibbs,
Therefore,
jurisdiction over
Plaintiffs'
for
if the
the
it
383 U.S.
715,
of
726
Court lacks original subject matter
claims
Complaint,
reading
and
will
causes
of
decline
action
to
alleged
exercise
in
subject
matter jurisdiction over any related state-law claims.
Having
alleged
cause of
reviewed
bases
for
the
legal
action in turn,
for
the
the
jurisdiction,
standards
will
consider
Court
addressing both
its
remaining
each
jurisdiction and
the sufficiency of each count for ease of reference.
B. Count
Plaintiffs'
primary
contention,
incorporated in Counts II through VI,
statute,
affords
enforceable
in
alternatively,
them
this
certain
Court
I
as
stated
in
is that the URA,
pre-deprivation
a
Count
federal
right
rights
of
I
and
a federal
that
are
action
or,
are reviewable in this Court pursuant to the APA.
Defendants argue that alleged violations of the URA do not give
rise to federally enforceable or reviewable rights in this case
20
and,
because
Plaintiffs'
the
URA,
over all
the
remaining
causes
of
action
set
forth
in
Complaint are premised solely upon claims founded on
the
Court
lacks
original
subject
matter
jurisdiction
such causes of action.
i.
Federal Question Jurisdiction over a Federal Right of
Action
The URA was created "in order to encourage and expedite the
acquisition of real property by agreements with owners,
litigation
and
consistent
treatment
and
to
promote
practices..."
relieve
congestion
for
public
42 U.S.C.
owners
the
the
in
confidence
§ 4651.
in
many
in
courts,
to
federal
federal
land
to avoid
assure
programs,
acquisition
The Act's primary purpose is to
ensure that "persons displaced as a direct result of programs or
projects
undertaken
by
a
financial assistance ... [do]
Federal
agency
or
with
Federal
not suffer disproportionate injuries
as a result of programs and projects designed for the benefit of
the
public
as
ultimately
such
seeks
persons."
subchapters:
providing
a
whole."
"to
minimize
U.S.C.
§ 4621(b).
Subchapter
hardship
Act
consists
of
II,
which
sets
forth
policies
for
displaced
persons;
and
to
displacement
URA
the
assistance
of
The
The
Id.
relocation
42
two
on
principal
Subchapter III, which creates guidelines for federal agencies to
apply in land acquisition proceedings.
question of
its
The Court addresses the
jurisdiction under both
21
Subchapters,
reaching
first
its
jurisdiction
under
Subchapter
III
in
light
of
its
prior Remand Order.
a. Subchapter III - Land Acquisition Policies
In remanding Defendant City's Certificate of
the Circuit Court for the City of
that
it
lacked
subject
matter
Chesapeake,
Wash,
No.
2:12cvl95,
this Court ruled
jurisdiction
acquisition policies—Subchapter III—of
2012 WL 3866508
under
the URA.
(E.D.
Take back to
Va.
the
land
Clear Sky Car
Sept.
5,
2012).
The Court adopts its prior holding and incorporates the reasons
stated
in
its
Remand
Order
in
again
finding
that
it
lacks
subject matter jurisdiction under the land acquisition policies
of the URA.
See id.
To summarize,
which
federal
acquisitions,
the
states
agencies
all
in
Subchapter III sets forth nine provisions by
should
laid out
§ 4655.
42
be
in § 4651
U.S.C.
§§
Clear Sky did in the prior action,
Defendants
guidelines,
violated
most
a
number
specifically
guideline of 42 U.S.C.
§ 4651(2).
guided
during
land
and incorporated against
4651,
4655.
As
Plaintiff
Plaintiffs again argue that
of
these
the
land
acquisitions
"independent
appraisal"
The URA specifies that
"the
provisions of section 4 651 ... create no rights or liabilities and
shall not
affect
the
validity of
purchase or condemnation."
any property acquisitions
42 U.S.C.
§ 4602(a).
by
Therefore, the
Act itself appears to state that § 4651 does not create federal
22
rights
in,
or
Additionally,
history9
a
federal
neither
support
the
right
case
of
law
Plaintiffs'
action
nor
argument
for,
landowners.
the
URA's
legislative
that
the
URA's
acquisition policies provide landowners such rights.
Car Wash,
2012 WL 3866508,
at *3-5
law and legislative history) .
land
Clear Sky
(reviewing the relevant case
Nor do the URA's land acquisition
policies provide for a federal right of action when the statute
is
read
(2002) .
in
light
Id.
at
Subchapter III
for
a
policies
of
incorporated
Gonzaga
*5-6
of
federal
of
(applying
the URA) .
right
§
of
4651,
against
University
action
the
from
land
federal
via
536
U.S.
273
Gonzaga
to
the URA does not provide
under
by
states
Doe,
guidance
Because
either
the
the
v.
§
acquisition
agencies
4655,
the
or
Court
as
again
finds that it does not have original subject matter jurisdiction
pursuant
to
28
U.S.C.
§
1331
over
actions
alleged under
such
9 As this Court previously noted, district courts in this Circuit are
required to first examine the plain language of the statute before
considering legislative history.
Ignacio v. U.S., 674 F.3d 252, 25556 (4th Cir. 2012); U.S. v. Hatcher, 560 F.3d 222, 226 (4th Cir.
The Hatcher court observed that, "[a]s a general rule, xwhen
2009).
the terms of a statute are clear, its language is conclusive and
courts are "not free to replace . . . [that clear language] with an
unenacted legislative intent."'"
Id.
(quoting United States v.
Mori son, 844 F.2d 1057, 1064 (4th Cir. 1988) (quoting INS v. CardozaThis Court previously considered
Fonseca, 408 U.S. 421, 453 (1987))).
this issue and found that,
based on the clear statement in § 4602(a),
the plain language of the URA does not appear ambiguous on the issue
of whether a federal right of action is created on the part of
landowners.
Clear Sky Car Wash, 2012 WL 3866508, at *4-5.
Despite
its finding, this Court reviewed the relevant legislative history for
purposes of completeness and because Clear Sky had argued legislative
history in its brief.
Id. at *4.
23
policies.
This leaves only the question of
question
jurisdiction
guidelines
for
under
determining
Subchapter
the
II
Court's federal
of
the
relocation assistance
URA,
the
for
displaced
persons.
b. Subchapter II - Relocation Payments and Assistance Policies
The URA does not expressly create a private,
of
action.
n.4
See Delancey v.
(5th Cir.
2009) .
City of Austin,
Rather,
570
federal right
F.3d
590,
593
Subchapter II directs the head of
any displacing agency to provide certain monetary and advisory
relocation
assistance
businesses.10
benefits
42 U.S.C.
to
§§ 4622,
displaced
4625.
and
reestablishing]
Laundry,
Inc.
(4th
Cir.
right
to
actual
a
replacement
in
business."
Am.
U.S.
Dep't of Transportation,
1983);
see
also
prompt
payment
for
§ 4633(b)(2).
of
42
U.S.C.
authorized payments
Section
services
to
entitled,
assistance
4625
"in
722
exists
a
[and
Cleaners
F.2d 70,
However,
the
72
the
and
42
advisory
displaced person
obtaining
&
only after a
has been made.
outlines
which
for
Dry
4622(a).
such expenses
relocation assistance
including
§
loss of tangible
searching
v.
proper application
U.S.C.
expenses
and
Section 4622 entitles
businesses to recover "actual moving expenses,
property[,]
individuals
is
becoming
10 The Court observes and clarifies for the benefit of the parties that
the express limitation contained in § 4602(a) applies only to the land
acquisition policies of Subchapter III and is therefore not applicable
to the
Court's analysis of Subchapter II's policies concerning
monetary and advisory relocation assistance.
24
established
in
a
suitable
§ 4625(c)(4);
see
Section
benefits
4625
requirement
Subchapter
of
II
also
§
location."
Am.
Dry
Cleaners,
are
not
subject
4633(b) (2).
appears
displaced persons
replacement
to
722
to
Although
confer
and businesses,
does
F.2d
the
U.S.C.
at
73.
application
the
not
language
of
entitlements
certain
it
42
to
address
whether
the URA gives Plaintiffs a federal right of action to pursue the
statutorily authorized benefits.
The
federal
not
Supreme
statute
Court
has
automatically
(1979).
law,
made
clear
been violated
give
favor of that person."
688
has
rise
to
and
a
private
Cannon v. Univ.
"must be created by Congress."
U.S.
560,
some
Federal rights of action,
U.S. 275, 286 (2001)
578
that
"the
fact
person
cause
of Chi.,
that
harmed
of
does
action
441 U.S.
a
in
677,
like substantive federal
Alexander v. Sandoval,
532
(citing Touche Ross & Co. v. Redington,
442
(1979)).
Whether
a
statute
expressly
or
implicitly creates such a right of action "is basically a matter
of statutory construction."
Lewis,
444 U.S.
11,
15
Transam.
(1979).
Thus,
Mortg.
it
is
Advisors,
a
Inc. v.
function of
the
court "to interpret the statute Congress has passed to determine
whether it displays an intent to create not just a private right
but also a private remedy."
Id.
(citing Lewis, 444 U.S. at 15).
The URA does not expressly create a federal right of action
under
any
of
its provisions.
For
25
the
reasons
stated in its
Remand
Order,
the
Court
has
found
that
the
land
acquisition
policies stated in Subchapter III of the URA do not give rise to
any rights or liabilities,
of
42 U.S.C.
4602(a)'s
§ 4602(a).
declaration
liabilities"
in accordance with the plain language
As previously noted,
that
only
applies
the
to
URA
however,
"create[s]
Subchapter
Section
no
or
and
III
rights
does
not
similarly limit the relocation assistance policies of Subchapter
II.
Therefore,
nothing
addresses whether a
in
the
plain
federal right of
language
action is
of
the
Act
available under
Subchapter II.
The United States
Court of Appeals
has not directly ruled on the
of
action
noted,
exists
an
524
of
that
intent
assistance
civil
the
issue of whether a federal right
URA.
But
the
to
to
Fourth
Circuit
has
[URA] and implementing regulations
adjudicate
tenants
proceedings."
controversies
v.
Esposito,
that
could
appropriately
such controversies,
the
an
seeking
injunctive
alleged
questioning
preliminary
violations
federal
relocation
754
F.2d
521,
Although it has not elaborated on the type
proceedings
action
over
administratively or by other appropriate
United States
(4th Cir. 1985).
civil
"[t]he
adjudicate
for
Fourth Circuit
in the context of reviewing the criminal prosecution of a
holdover tenant,
evince
under
for the
of
Fourth
Subchapter
jurisdiction over
26
be
Circuit
relief
II
of
such
a
employed
to
has
reviewed
from
eviction
the
cause
URA
without
of
action.
Am.
Dry Cleaners,
grant
of
a
722 F.2d at 72
preliminary
(reversing the District Court's
injunction
defendant had complied with its
relocation assistance).
explicitly considered
And,
the
on
ground
that
the
obligation to provide advisory
while
the
availability
action under Subchapter II,
the
the
Fourth
of
a
Circuit
not
right
federal
has
of
Third Circuit has held that a
federal right of action against state officials exists when such
officials
with
fail
the
URA.
F.2d 976,
for
to
provide
Pietroniro
(3d Cir. 1985)
violations
comprehensive
relocation
of
42
v.
assistance
Borough
of
in
accordance
Oceanport,
N.J.,
764
(finding such a private cause of action
U.S.C.
enforcement
§
4625
scheme"
for
"[i]n
the
absence
of
redressing violations
a
of
the URA).
More recently,
Circuit)
however,
circuit courts
(including the Third
have questioned whether such a federal right of action
exists under Subchapter II of the URA in light of the Supreme
Court's
2002
decision
in
Gonzaga,
Munoz v. City of Philadelphia,
Cir. 2009)
(unpublished)
Gonzaga v.
Doe,
create
a
563
private
570 F.3d at 595
U.S.
right
536
U.S.
273.
346 Fed. App'x 766,
("We highly doubt whether,
273
(2002),
enforceable
42
under
U.S.C.
§
See,
e.g. ,
769 n.6
(3d
in light of
§ 4625(a)
1983.");
does
Delancey,
(holding that "the URA provision here[,
§ 4625,]
does not evidence Congressional intent to create a private right
of
action for money damages"
in light of
27
Gonzaga's
guidance);
Faylor v.
(per
Szupper,
curiam)
411 Fed.
(noting
App'x 525,
that
"it
is
531 n.7
unclear
(3d Cir.
whether
2011)
the
URA
provides a private right of
action for money damages"
in
of
in Delancey,
594,
the
conflicting holdings
Pietroniro,
764
F.2d
considered whether a
U.S.C.
and
§ 1983
Privacy
980) .
federal
the
circumstances
of
("FERPA").
issue,
under
which
the
and
"unless
manifests
rights,"
280
that
there
an
is
the
'unambiguous'
basis
(1981)).
536
Court
existed under 42
Educational Rights
U.S.
statute
276.
In
described
Court
'speaks[s]
intent
for private
(quoting Pennhurst State Sch.
1, 17
Family
Supreme
and
at
the
gives
rise
to
a
The Court reemphasized its prior
Congress
no
the
action
Gonzaga
federal
private right of action.11
holding
of
Gonzaga,
a
F.3d at
In Gonzaga,
right
for violations
Act
considering
at
570
light
with a
to
clear voice,'
confer
individual
enforcement...."
& Hosp. v. Halderman,
Id.
at
451 U.S.
To determine whether Congress had exhibited such
an unambiguous intent to create a private right of action under
FERPA,
11
the
Although
Gonzaga
the
Court
Gonzaga
Court
considered
three
addressed
whether
primary
a
statute
factors:
created
rights enforceable under 42 U.S.C. § 1983, the Court observed that
"[a] court's role in discerning whether personal rights exist in the
§ 1983 context should ... not differ from its role in discerning whether
personal rights exist in the implied right of action context.
Both
inquiries simply require a determination as to whether or not Congress
intended to confer individual rights upon a class of beneficiaries.
Accordingly, where the text and structure of a statute provide no
indication that Congress intends to create new individual rights,
there is no basis for a private suit...." Gonzaga, 536 U.S. at 285
(internal citations omitted).
28
(1) whether the Act included specific,
(2)
whether the
and (3)
the
language had an individual or aggregate
provisions
Delancey,
focus;
audience to whom the language was directed and the
strength of such language.
Only
rights-creating language;
one
federal
in
light
Id. at 290.
Circuit
of
Court
Gonzaga.
the Fifth Circuit
has
considered
Delancey,
570
considered § 4625
the
F.3d
of
URA's
590.
In
Subchapter II
of the URA, which provides for advisory relocation assistance to
qualifying
displaced
persons
and
businesses.
Id.
After reviewing the Gonzaga Court's guidance,
at
594-95.
the Fifth Circuit
held that there was no Congressional intent to create a federal
right of action under the URA.
Id. at 595.
In so holding,
the
Fifth Circuit rejected pre-Gonzaga cases offered to demonstrate
the existence of such a right of action on the ground that such
cases
"predate [d]
and
conflict [ed]
therefore "unpersuasive."
This
in
Court
Delancey
when
it
right of action existed under the
Subchapter III of the URA.
at
*5-6.
The
Court
Fifth Circuit's
considered
the
Fifth
in considering the question of
of
exists
Subchapter
II.
the
whether
Clear Sky Car Wash,
again finds
under
and
were
relocation
Specifically,
29
reasoning
a
federal
land acquisition policies
persuasive
action
Gonzaga"
Id. at 595 n.7.
previously found the
persuasive
with
the
in
2012 WL 3866508,
Circuit's
reasoning
whether such a right
assistance
Court
finds
policies
that
in
the
provisions of
advisory
§§ 4622
relocation
and 4625,
assistance,
any displacing agency'
by
the
statute."
provisions do
are
570
"directed at
the
'head of
Further,
such
"rights-creating language."
contain any
see also Gonzaga,
for monetary and
rather than at the individuals benefited
Delancey,
not
which provide
F.3d
Id. ;
536 U.S. at 290.
at
594.
"Instead,
[they] prescribe[]
a policy and practice for administering relocation assistance."
Delancey,
42
570 F.3d at 595
U.S.C.
"policy
§ 4622.
and
individual
The Gonzaga
practice"
right
also
Delancey,
that
Congress
(citing 42 U.S.C.
of
570
did
Court
language
action.
F.3d
not
at
is
expressly held
insufficient
Gonzaga,
595.
§ 4625(b)); see also
536
U.S.
Therefore,
evidence
an
intent
to
that
to
at
such
create
288-89;
this
Court
create
right of action under Subchapter II of the URA and,
a
an
see
finds
federal
absent such
intent, the URA does not create such a right of action.
As the Fifth Circuit did in Delancey,
cases
predating
and
in
conflict
with
this Court finds that
Gonzaga,
including
Fourth Circuit's decision in American Dry Cleaners,
and
the
Third
Circuit's
are
unpersuasive
and
decision
in
uninstructive
Pietroniro,
on
the
issue
the
722 F.2d 70,
764
F.2d
of
976,
whether
a
federal right of action exists under Subchapter II of the URA.12
12
American
Dry
Cleaners
vacated
the
district
court's
grant
of
a
preliminary injunction on the ground that the defendant in that case
had not failed to comply with Subchapter II's requirements.
722 F.2d
at 73.
In so holding, the Fourth Circuit did not address the question
of
whether a federal right of
action exists under the URA.
30
Although
Instead,
the
Delancey,
that the URA does not provide for a federal right of
action
II.
under
Court
the
holds,
in
relocation
Although Subchapter II
assistance benefits,
Alexander,
532 U.S.
it
accordance
assistance
does
set
with
Gonzaga
policies
of
and
Subchapter
forth certain relocation
does not create a private remedy.
See
at 286.
This reading of Subchapter II is consistent with the URA's
legislative
history.
The
finding no federal
right of
the
of
Court
plain
language
Reid v. Angelone,
the
considers
such
we
as
must
the
statute
369 F.3d 363,
is
368
ambiguous
(4th Cir.
in
history.");
on
2004)
the
issue.
(" [T] o the
[the statute's relevant]
consider other indicia of
legislative
history
action under Subchapter II because
extent that there is any ambiguity in
terms,
such
congressional
Hatcher,
560
F.3d
intent,
at
226
("Only if ... the terms of a statutory provision are ambiguous [is
a court]
the
then permitted to consider other evidence to interpret
meaning
history.").
of
the
provision,
including
the
legislative
As Plaintiff Clear Sky argued when opposing remand,
it may have assumed, for purposes of its decision, that such an action
existed, it ultimately vacated the order of the district court.
Id.
at 74.
The Third Circuit's decision in Pietroniro directly conflicts
with Gonzaga in holding that "[i]n the absence of a comprehensive
enforcement scheme within the regulatory scheme which encompasses the
plaintiff's Complaint there exists a private cause of action against
state
officials
for
violations
of
...
the
URA."
764
F.2d
at
980.
Gonzaga requires far more than the mere absence of a comprehensive
enforcement scheme before a private cause of action may be implied.
536 U.S. at 290. And the guidance provided in Gonzaga, as reviewed in
Delancey, counsels against implying a cause of action for violations
of the URA.
See Delancey,
570 F.3d at 594-95.
31
Plaintiffs
claim
that
the
legislative
history
evidences
Congressional intent to allow claims under the URA and judicial
review of such claims.
The Court reviewed the Act's legislative
history in its Remand Order.
the
most
In so doing,
noted opinion on the question,
the Court considered
Barnhart
v.
Brinegar,
362 F. Supp. 464 (W.D. Mo. 1973),13 and found such opinion to be
well reasoned.
is
again
argument.
The Court again finds Barnhart
unpersuaded
The
exhaustive
by
district
review of
Plaintiffs'
court
the URA's
in
review:
(1)
that
Subchapter Ill's
under
no
Barnhart
history
conducted
an
history and reached
intent concerning judicial
review
would
be
available
under
land acquisition policies and no rights arise
such policies;
decisions
judicial
legislative
legislative
two conclusions regarding Congress's
instructive and
regarding
replacement housing,
[under Subchapter II]
and
(2)
that
relocation
"judicial
review
payments
and
of
agency
assistance,
and title transfer and litigation expenses
was
to
be governed by the
the Administrative Procedures Act."
existing
Id. 362 F. Supp.
law,
at 4 71-72.
This Court agrees with Barnhart's conclusions and adopts them as
13 As this Court noted in its Remand Order, the Fifth, Seventh, Eighth,
and Eleventh Circuit Courts of Appeals have
analysis of the URA's legislative history.
adopted the
See,
e.g.,
Barnhart
Ackerley
Commc'ns of
Fla. , Inc. v. Henderson, 881 F.2d 990, 992 (11th Cir.
1989); United States v. 320.0 Acres of Land, More or Less in Monroe
Cnty., State of Fla.,
605 F.2d 762, 823 (5th Cir. 1979); Roth v.
United States Dep't of Transp., 572 F.d 183,
184 (8th Cir. 1978);
Rhodes v. City of Chi, for Use of Sch. , 516 F.2d 1373, 1378 (7th Cir.
1975).
32
the
appropriate
statements
jurisdiction under
of
Congress's
the URA.14
intent
Specifically,
concerning
Subchapter
II's
relocation assistance policies are not enforceable in a federal
right
of
judicial
action.
review
those policies,
See,
e.g.,
intended
To
of
agency
extent
Plaintiffs
decisions
are
regarding
entitled
benefits
to
under
such review is governed exclusively by the APA.
Ackerley,
that
the
the
881
F.2d
at
993
Administrative
("We
find
Procedure
that
Act
Congress
would
be
the
exclusive remedy for alleged violations of the URA.").
Because
no
federal
right
of
action
exists
under
either
Subchapter of the URA, the Court lacks jurisdiction over Count I
pursuant to 28 U.S.C. § 1331.15
ii.
Even
Federal Review Jurisdiction Pursuant to the APA
where
this
Court
lacks
original
jurisdiction pursuant to 28 U.S.C. § 1331,
jurisdiction
to
review
pursuant to the APA,
certain
question
it may still exercise
administrative
§ 701 et seq.
5 U.S.C.
federal
agency
actions
The APA provides
that "a person suffering legal wrong because of agency action,
or
adversely
entitled
to
affected
judicial
or
aggrieved
review
thereof."
by
agency
action
U.S.C
§ 702.
5
...
is
Such
14 The Court does not here restate its conclusions regarding the URA's
land acquisition policies, but instead refers again to its Remand
Order.
15
The
See Clear Sky Car Wash,
Court
Plaintiffs
granted.
2012 WL 3866508,
additionally makes
have
failed
to
state
the
a
33
at *4.
alternative
claim
upon
finding
which
below
relief
that
can
be
jurisdiction is
to
review
statute[,]
other
limited,
only
and
conducting
"[(1)]
[(2)]
adequate
however;
agency
action
made
reviewable
by
final agency action for which there is no
remedy
judicial
federal courts are authorized
in
a
5
authorized
review
court."
U.S.C.
by
the
§ 704.
APA,
a
When
district
court has authority to "compel agency action unlawfully withheld
or
unreasonably
agency action,
regarding
§
and
findings,
such
to
"hold
unlawful
and conclusions"
actions,
findings,
and
and
set
aside
upon certain findings
conclusions.
5
U.S.C.
706.
As
above,
of
delayed"
explained
land
Sky Car
expressly
Court's
acquisition
Wash,
provides
that
42
Plaintiffs
of
connection
with
by
reviewable
policies
2012
liabilities."
taken
the
Remand
Order
and
reviewed
the URA precludes judicial review for alleged violations
the
Clear
in
such
the
§
4602.
against
URA's
agencies
the
3866508,
§ 4561
U.S.C.
any rights
under
WL
stated
land
at
in
Subchapter
*4.
Section
"create[s]
Because
federal
or
acquisition
in
accord with
APA.
Barnhart,
those
362
no
or
deprives
agencies
policies,
policies
F.
4602(a)
rights
§ 4602(a)
state
III.
Supp.
(holding that if no rights exist under Subchapter III,
in
actions
are
not
at
472
"then one
cannot be adversely affected or aggrieved by agency action," as
required by § 702, which in turn "bars review of federal agency
decisions under the
[APA]");
see also
34
Clear Sky Car Wash,
2012
WL
3866508,
at
*3-6.
jurisdiction pursuant
agency actions
leaves
Thus,
to
the
the
APA
Court
to
review
alleged under Subchapter
only the
question of
its
finds
III
that
federal
of
it
lacks
and
state
the URA.
jurisdiction to
This
review agency
actions under the relocation assistance provisions of Subchapter
II.
Unlike the land acquisition policies of Subchapter III, the
relocation
assistance
assistance
benefits
businesses.
42
§ 4602(a)
of
the
policies
for
U.S.C.
set
qualifying
§§ 4622,
(clarifying that § 4651,
URA,
"create[s]
forth
no
certain
displaced
4625;
see
relocation
persons
also
42
and
U.S.C.
the land acquisition policies
rights
similarly limiting §§ 4622 and 4625).
or
liabilities"
However,
without
as stated above,
those rights are not enforceable via a federal right of action.
Rather,
they
Ackerley,
are
enforceable
881 F.2d at 993
exclusively under
2d 710, 723
APA.
E.g. ,
(holding that the APA is the exclusive
remedy for violations of the URA);
298 F. Supp.
the
Wallace v.
(N.D. 111. 2003)
Chi.
Hous. Auth.,
(addressing an alleged
failure to provide relocation assistance and holding that
"the
Administrative Procedures Act ... is the exclusive remedy for URA
claims....") ; Ledesma v. Urban Renewal Agency of City of Edinburg,
Tex. , 432
("While
judicial
review of property acquisition is precluded by statute,
judicial
review
of
F.
Supp.
agency
564,
566
decisions
(D.C.
Tex.
regarding
35
1977)
relocation
payments
and
assistance
Act.");
...
is
governed
Barnhart,
history and
"judicial
362
finding
review
payments
and
jurisdiction
Subchapter
F.
that
of
by
the
Supp.
at
Congress
agency
II's
review
the
actions
the
legislative
APA to govern
regarding
Therefore,
to
Procedures
(reviewing
decisions
agency
policies
471
intended
assistance....").
to
Administrative
the
Court
that
has
pursuant
taken
extent
relocation
to
such
action
satisfies the requirements of § 704.
The APA authorizes judicial review only for agency actions
made
reviewable
U.S.C.
§ 704.
not made
by
statute
and
for
final
agency
actions.
Action taken under Subchapter II of
reviewable by statute.
Accordingly,
the
URA is
the Court
that a final agency action is required before Plaintiffs'
to
relocation
assistance
under
Subchapter
II
of
the
5
finds
rights
URA
are
subject to judicial review.
To the extent that Plaintiffs have
pled
action
such
aggrieved,
a
final
the
Court
agency
has
by
jurisdiction
which
to
they
review
have
such
been
action
under the APA.
An agency action is final if "the initial decisionmaker has
arrived at a definitive position on the issue that
actual,
concrete injury."
(1993)
(quoting
Hamilton Bank of
Darby v. Cisneros,
Williamson
Cnty.
Johnson City,
Reg'l
479 U.S.
509 U.S.
Planning
172,
inflicts an
193
137,
144
Comm'n
v.
(1985)).
The
finality requirement is conceptually distinct from the judicial
36
doctrine
of
exhaustion
"generally refers
which an
of
administrative
remedies,
which
to administrative and judicial procedures by
injured party may seek review of
an adverse decision
and obtain a remedy if the decision is found to be unlawful or
otherwise
inappropriate."
requirement is to
Id.
"provide[]
The purpose
of
the
exhaustion
an agency with an opportunity
'to
correct its own mistakes with respect to programs it administers
before
Corp.
it
is haled into federal
v. U.S. Dep't of Labor,
(quoting
McCarthy
v.
court.'"
Volvo GM Heavy Truck
118 F.3d 205,
Madigan,
503
U.S.
209
(4th Cir.
140,
145
1997)
(1992)).
Although the concepts of finality and exhaustion are distinct,
the Supreme Court has held that
the
APA
'explicitly
requires
"an action brought pursuant to
exhaustion
of
all
intra-agency
appeals mandated either by statute or by agency rule.'"
Id.
(quoting Darby, 509 U.S. at 147).
As a threshold matter,
the factual allegations set forth in
the Complaint address only relocation payments under Subchapter
II.16
Plaintiffs
allege
no
facts
concerning
any
advisory
16 Upon careful review of Plaintiffs' Complaint, the Court finds only
four paragraphs containing factual allegations related to relocation
assistance.
(Compl. Hfl 128, 144-46).
Specifically, Plaintiffs allege
that in Defendant City's November 17, 2011 letter, "Defendants stated
... that Plaintiffs still 'must apply' if they want calculation and
payment of certain relocation benefits."
on
February 21,
that
2012,
Defendant
"Defendants had made
a
(Compl. ^ 128).
City's attorney
'calculation of
advised
benefits
And, that
Plaintiffs
and provided a
copy of related city regulations with strict deadlines because
Plaintiff 'would like to appeal,'" which calculation Plaintiffs allege
was neither made nor provided to Plaintiffs.
37
(Compl.
1M 144-46).
relocation assistance under § 4625 and do not even allege that
Defendants
failed to provide them such advisory assistance.17
Therefore,
the
Court
considers
obligations with respect to
only
Plaintiffs'
pleading
§ 4622 and does not address
§ 4625
in considering its jurisdiction under the APA.
Section
4621
entitles
relocation
payments
upon
authorized
for
displaced
person
§ 4633.
denied
such
by
[Subchapter
certain
for
application
to
payment
II]."
42
U.S.C.
Plaintiffs do not allege that they applied for and were
relocation assistance
Plaintiffs
concede
relocation
payments
Because
"proper
individuals
Plaintiffs
in
payments
under
the
briefs
that
they
their
under
failed
to
Subchapter
even
seek
II
URA.
Rather,
never
from
sought
Defendants.
such benefits,
there
is
no agency action stating a "definitive position on the issue" of
the relocation benefits available to Plaintiffs.
See Darby,
509
Plaintiffs fail to specify which benefits are at issue in Paragraphs
144-46.
Based on Plaintiffs allegations concerning their lengthy
correspondence
with
Defendant
City
regarding
the
appraisal
calculations, the Court believes that such benefits likely address the
appraised value of Clear Sky Car Wash.
The context of the Complaint
and Plaintiffs' concession that they never applied for relocation
assistance payments under § 4622 further compel this conclusion.
Even
if
the
Court
assumed that
the
referenced benefits
concern
relocation
assistance, which it does not, it is clear that the facts would be
limited to relocation payments, based on the pleaded reference to
their "calculation."
Therefore, none of the pleaded facts address
non-monetary assistance under § 4625.
17 Plaintiffs
corresponding
requirements.
do cite to § 4625 and policies set
regulations when detailing their view
(Compl.
W
162-63;
185-86).
forth in its
of the URA's
But Plaintiffs plead no
facts concerning such provisions and the Court is not bound by legal
conclusions set forth in the Complaint.
Eastern Shore Mkts., 213 F.3d
at
180.
38
U.S.
at
144.
In the absence of any agency action under § 4622,
this Court finds that there is no final agency action for it to
review pursuant to its limited jurisdiction under the APA.
United States v. 24 9.12 Acres of Land,
& Cotton Counties,
Okl.
State
(finding
1976)
indication
that
of
no
Okl. , 414
final
Defendants
relocation assistance]
holding that absent
More or Less,
F.
action
have
Supp.
where
presented
See
in Stephens
933,
935
"there
their
(W.D.
is
no
claim
[for
to the proper administrative agency"
such a
final action,
and
the matter could not
"be maintained as a judicial review of an administrative action
under
the
APA") .
Because
Plaintiffs
have
failed
to
seek
any
agency action as to relocation assistance payments under § 4622,
this
Court
finds
that
it
lacks
jurisdiction under
the APA,
as
there is no final agency action before it for review and the URA
does
See
not
5
otherwise
U.S.C.
§
make
agency
action
reviewable
by
statute.
704.
Plaintiffs
contend
that
the
Court
has
jurisdiction under
the APA despite their failure to apply for relocation assistance
payments because such application would have been futile.
allegation
is
grounded
in
two
arguments:
that Defendants
"barred"
them from
by
provide
them
failing
to
(1) Plaintiffs
This
claim
seeking relocation benefits
with
an
independent
appraisal
adequately describing the property appraised, as provided for in
the
regulations
corresponding
to
39
the
URA's
land
acquisition
policies;
them
and (2) Plaintiffs also claim that Defendants "barred"
from
Plaintiffs
seeking
to
such
cease
relocation
benefits
communicating
with
by
directing
City's
Defendant
employees once Defendant City and Plaintiffs had each obtained
counsel.
Before
the
pursuant to the APA,
final
agency
Court
may
exercise
action
4633
jurisdiction
the party seeking such review must obtain a
by
exhausting
all
mandated by statute or agency rule.
Section
review
and
its
intra-agency
See Darby,
corresponding
appeals
509 U.S. at 147.
regulations
provide
administrative procedures by which Plaintiffs could have sought
monetary
relocation
adverse
agency
assistance.
assistance
decision
and
could
regarding
Plaintiffs'
have
their
argument
appealed
right
that
to
any
such
"resort[]
to
administrative procedures would be futile" addresses not whether
there
is
any
agency
action
before
the
instead whether Plaintiffs may excuse
the
administrative
remedies
corresponding regulations,
of
an
otherwise
unripe
set
United States I.N.S., 50 F.3d 6,
table
decision)
party
may
(listing
be
excused
administrative
remedies) ;
(noting
actions
that
forth
see
an
also
brought
See,
one
§
4633
e.g.,
basis
obligation
Volvo
pursuant
40
in
*3 (4th Cir. 1995)
as
review,
but
and
its
and thereby seek review
action.
futility
from
for
their failure to exhaust
as required,
agency
Court
GM,
to
118
the
Fares
v.
(unpublished
upon
which
a
to
exhaust
F.3d
at
APA
require
209
exhaustion of all
agency
rule).
intra-agency appeals
Because
the
Court
mandated by statute
finds
no
agency
action
or
in
connection with the relocation assistance policies of Subchapter
II,
Plaintiffs'
failure
to
exhaust
remedies
is
largely
irrelevant, as there is nothing for the Court to review, even if
it excuses exhaustion as futile in this case.
completeness,
however,
the
Court
will
For purposes of
briefly
address
the
exhaustion doctrine as it relates to § 4622.
The plain language of
persons
and
payments
businesses
under
the
the
will
Act.
regulations
"supported by
documentation
[the]
Furthermore,
expenses
the
URA
apply
42
corresponding
support
URA contemplates
for
as
relocation
U.S.C.
require
§
that
may
be
such
49
the
assistance
4633(b)(2).
The
applications
reasonably
incurred."
prescribes
that displaced
required
C.F.R.
process
be
§
by
to
24.207.
which
an
aggrieved applicant should seek review of their application—that
is,
from
the
head
of
the
federal
or
authority over the displacing project.
In light
finds
Court's
that
administrative
Subchapter
II
guidance
Plaintiffs
remedies
could
in Darby,
were
constitute
purposes of judicial review.
any
a
Thus,
41
§ 4633(b)(3).
509 U.S.
to
agency
final
having
forth in § 4633
required
before
agency
42 U.S.C.
of the administrative scheme set
the Supreme
Court
state
at
147,
and
this
exhaust
their
action
under
agency
action
for
Plaintiffs were required to
exhaust
the
application
Volvo GM,
App'x
URA's
of
some
administrative
exception
118 F.3d at 209;
652,
656
remedies,
excusing
such
absent
the
exhaustion.
See
Dalton v. City of Las Vegas,
(10th Cir.
2008)
("Provided it
is
282 Fed.
unrelated to
land-acquisition policy ... a plaintiff can bring an action under
Title II of the URA ... but only through a proceeding under the
[APA]....
before
The APA requires exhaustion of administrative remedies
federal
omitted));
Am.
exhaustion is
jurisdiction
will
lie."
(internal
Dry Cleaners,
722
F.2d at
required for determinations
71
n.l
citations
(noting that
regarding a
person's
eligibility for and the amount of relocation assistance payments
under the URA,
but not for advisory relocation assistance under
§ 4625).
Exhaustion of
"(1)
the
dispute
administrative
resorting
to
administrative
administrative
concerns
procedures
remedies
statutory
would
administrative
remedies
injury;
(3)
futile;
(4)
would
Inc.,
be
inadequate;
at *3 (citing Darby v. Kemp, 957 F.2d 145, 147
Centra,
if:
irreparable
administrative decision would go unreviewed."
McDonald v.
required
(2)
cause
be
not
construction;
procedures
would
is
946 F.2d 1059,
1063
or
Fares,
using
(5)
the
50 F.3d 6,
(4th Cir. 1992);
(4th Cir.
1991)).
The only excuse Plaintiffs proffer for their failure to exhaust
the
administrative
remedies
II of the URA is futility.
available
However,
42
to
them
under
Subchapter
before a party is entitled
to
rely on the
least
one
procedures,
futility exception,
good
faith
administrative
Kinzli
at
decisions
relief
(9th Cir. 1987)
that
required to make
under
at
administrative
unless a final agency decision establishes that even
(discussing
review);
is
application
one application would be futile.
188-89
it
least
administrative
v.
can
See Hamilton Bank,
holding
render
City of
Santa
that
claims
Cruz,
failure
unripe
818
4 73 U.S.
to
at
seek
for
1449,
F.2d
judicial
1454-55
(noting that " [T]he Supreme Court has indicated
one
application
procedures]
must
before
be
the
submitted
futility
[under
exception
applies").
Plaintiffs
application
Rather,
seek
for
have
failed to
relocation
allege
assistance
that
they made
payments
even one
under
§
4622.
Plaintiffs concede that no such application was made and
instead
However,
to
excuse
their
failure
by
reason
of
futility.
the Court finds that none of the facts alleged state a
final agency action demonstrating that even one application for
relocation payments would have been futile.
Defendants' alleged
failure to provide an adequate appraisal under Subchapter III,
which
gives
determine"
Plaintiffs
whether
no
rights,
Defendants
would
relocation assistance payments.
194.
On
the
contrary,
the
"does
have
not
denied
See Hamilton Bank,
Complaint
conclusively
itself
Plaintiffs
473
U.S.
alleges
at
that
Defendant City invited Plaintiffs to apply for calculation and
43
payment of such relocation benefits.
Defendant
with
City's
Defendant
Defendant
request
City's
Greenhorne,
that
Plaintiffs'
attorney
does
(Compl. U 128).
not
counsel
instead
suggest
have been denied relocation payments.
of
that
Likewise,
communicate
their
employee,
Plaintiffs
would
Because the facts alleged
are not dispositive on the question of whether Plaintiffs would
have been denied all benefits under
"a final,
make
reviewable decision"
at
least
one
§ 4 622,
they do not create
and Plaintiffs
application
for
such
could rely on the futility exception.
were required to
benefits
Id.
before
they
Their failure to do
so forecloses their reliance on such exception.
Further,
although Plaintiffs are not excused by reason of
futility from failing to apply for relocation payments at all,
even
if
they
could
invoke
the
futility
Court has just explained cannot be done),
to
plead
facts
plausibly
showing
such
exception
Fourth
Circuit
requires
a
"clear
exception
and
would
Health Care
83
(4th
Cir.
Corp.
1989)
of Mid-Atlantic
(reviewing
positive
showing
(CareFirst) , 872
futility
in
the
excuse
Specifically,
futility ... before suspending the exhaustion requirement."
v.
the
Plaintiffs have failed
their failure to exhaust administrative remedies.
the
(which
of
Makar
F.2d 80,
ERISA context).
The Court finds that Plaintiffs bare allegations that Defendants
barred them from pursuing administrative
exhausted
Plaintiffs'
administrative
44
remedies
remedies
by
or otherwise
failing
to
provide an appraisal to which Plaintiffs had no federal right,
and
by
City's
seeking
to
direct
attorney
do
not
positive
showing
Plaintiffs
excuse
the
were
their
URA,
of
future
rise
to
the
futility."
allowed to
failure
communications
to
Id.
invoke
exhaust
which they are
not,
level
the
to
of
a
Defendant
"clear
Therefore,
doctrine
of
administrative
they have
even
and
if
futility to
remedies
failed to
under
plead facts
plausibly showing that they are entitled to such excuse.
To
summarize
the
Court's
the URA does not create a
findings
as
to
Count
I,
because
federal right of action under either
the relocation assistance policies of Subchapter II or the land
acquisition
policies
of
Subchapter
III,
this
Court
lacks
original subject matter jurisdiction over Count I pursuant to 28
U.S.C.
§
1331.
Although
the
Court
may
exercise
review
jurisdiction over relocation assistance determinations under the
APA generally,
action
Plaintiffs have failed to allege a final agency
sufficient
Plaintiffs
were
under the URA,
failure
by
to
trigger
required
reason
of
under
the
finds
even
if
pursuant
to
the
APA,
upon which relief
the
administrative
the
Court
Additionally,
Court
Plaintiffs
can be
Because
remedies
and cannot be excused from such
futility,
APA.
jurisdiction.
exhaust
failed to do so,
jurisdiction
that,
to
such
could
have
45
exercise
failed
granted because
the
to
lacks
review
Court
further
jurisdiction
state
Plaintiffs
a
claim
allege no
facts concerning advisory relocation assistance under § 4625 and
Plaintiffs
under
failed
§ 4622,
as
regulations.
dismiss
to
apply
I
monetary
by
required
Therefore,
Count
for
§
4633
relocation assistance
and
its
corresponding
the Court grants Defendants' motions to
pursuant
to
Federal
Rules
of
Civil
Procedure
12(b) (1) and 12(b) (6) .
To
the
extent
that
the
remaining
counts
rely
on
the
existence of a federal right to pre-deprivation benefits under
the URA,
over
no such right exists and the Court
such
counts
pursuant
acquisition
policies
liabilities"
and
of
therefore
remaining claims.
to
28
the
URA
cannot
Similarly,
U.S.C.
lacks jurisdiction
§
1331.
"create
serve
as
the
no
The
land
rights
basis
or
for
the
although the relocation assistance
policies of the URA do create certain pre-deprivation benefits,
the APA is the exclusive remedy for alleged violations of such
rights.
See, e.g. , Ackerley,
jurisdiction under
the
allege
agency
a
final
Additionally,
the
few
881 F.2d at 993.
APA because
action
facts
Plaintiffs
concerning
alleged
in
The Court lacks
have
such
connection
failed
to
benefits.
to
such
benefits are not enough to state a claim under Subchapter II of
the URA.
to
the
Because the Court lacks jurisdiction over Count I and,
extent
failed to
it
state a
could
exercise
jurisdiction,
claim upon which relief
Plaintiffs
can be granted,
have
any
benefits available under Subchapter II cannot serve as the basis
46
for the remaining claims because the Court lacks jurisdiction to
review such benefits and because Plaintiffs have failed to plead
sufficient
See id.
42
facts
showing that
they were
denied
such benefits.
(holding that a district court lacks jurisdiction under
U.S.C.
§
1983
to
consider
claims
for
which
the
APA
is
the
exclusive remedy).
To the extent the remaining counts rely on rights alleged
to arise under the URA,
the Court dismisses such counts for lack
of jurisdiction under 12(b)(1).
However,
while
the remaining
counts incorporate by reference the alleged URA violations, such
counts
are
not
allegations.
limited
by
the
extent
To
their
language
they
independent of the URA's provisions,
seek
to
to
only
assert
the Court will
those
claims
consider
each count in turn.
C. Counts II,
As
a
threshold
matter,
III,
this
and IV
Court
finds
that
it
has
original subject matter jurisdiction over Counts II, III, and IV
pursuant
to
28
U.S.C.
§ 1331,
which
gives
district
courts
original jurisdiction "of all civil actions arising under the
Constitution,
U.S.C.
§ 1331.
laws,
or
treaties
of
the
United
States."
28
Such federal question jurisdiction exists "when
a federal right or immunity forms an essential element of the
plaintiffs' claim ... [and] when the federal law creates the cause
of
action."
Verizon,
377
F.3d
47
at
362
(internal
citations
omitted) .
Process
Counts
Clause
II
of
and
the
III
Fifth
allege
and
violations
Fourteenth
of
the
Due
to
the
Amendments
United States Constitution and of the Equal Protection Clause of
the
Fourteenth
Amendment,
which
give
rise
to
federal
constitutional rights.
Count IV is pled under federal statutes
that
action,
create
1985.18
relief
the
causes
of
that
is
42
U.S.C.
§§ 1983
and
Provided each count properly states a claim upon which
can be
URA,
granted
this
independent
Court
may
of
exercise
any alleged rights
original
subject
under
matter
jurisdiction over such claims pursuant to 28 U.S.C. § 1331.
i.
Count
II
Plaintiffs'
Count II
alleges
that
-
Due Process
Defendants
knowingly
violated
substantive and procedural due process rights under
the Due Process Clause of the Fifth and Fourteenth Amendments to
the United States Constitution.
The Due Process Clauses of both
Amendments respectively provide
that neither
the federal
nor
state governments shall deprive any person "of life, liberty, or
property without due process of law."
U.S. Const, amend. V; see
18 Count IV also alleges a right to recover attorneys' fees under 42
U.S.C.
§ 1988(b).
The Court has discretion to award such attorneys'
fees "in any action or proceeding to enforce"
certain federal statutes.
42 U.S.C.
§ 1988(b).
civil rights under
Section 1988 does not
provide a standalone cause of action for recovery of attorneys' fees.
The only civil rights statutes authorized by § 1988(b) and alleged in
the Complaint are 42 U.S.C. §§ 1983 and 1985.
Id.
Therefore, unless
a cause of action is stated pursuant to these statutes,
be
dismissed
because
"§
1988
does
not
authorize
a
Count IV must
court
to
award
attorney's fees except in an action to enforce the listed civil rights
laws."
U.S.
N.C.
6, 12
Dep't
of Transp.
v.
Crest
(1986) .
48
St.
Cmty.
Council,
Inc.,
479
also U.S.
Const,
amend.
constitutional scheme,
14, § 1.
Due
process of
is divided into two prongs:
due process and procedural due process.
F.3d 120,
To
122
state
demonstrate:
of
which
law."
(4th
(4th Cir.
a
Cir.
Plaintiffs
1995) .
must
due
process
deprived them
Pepersack,
claim,
Plaintiffs
To
(2)
47
must
(3)
state
a
substantive
"(1)
that
(2)
without due process of
Corp. v. Calvert Cnty. , Md. , 48 F.3d 810,
demonstrate:
property interest;
substantive
they had property or a property interest
[Defendants]
Sylvia Dev.
Love v.
in our
1995).
procedural
"(1)
law,
due
process
826
claim,
they had property or a
that [Defendants']
deprived them of this
property or property interest; and (3) that [Defendants'] action
falls so far beyond the outer limits of legitimate governmental
action that no process could cure the deficiency."
F.3d at 827
process is
(citing Love,
47 F.3d at 122)).
on certain governmental
48
Substantive due
"a far narrower concept than procedural;
absolute check
Sylvia,
it is an
actions notwithstanding
'the fairness of the procedures used to implement them.'"
Love,
47 F.3d at 122 (quoting Weller v. Dep't of Soc. Servs., 901 F.2d
387, 391 (4th Cir. 1990) ).19
19 Additionally, the Fourth Circuit has held that "[t]he protection of
substantive due process is indeed narrow and covers only state action
which is
'so arbitrary and irrational,
so unjustified by any
circumstance or governmental interest, as to be literally incapable of
avoidance by any pre-deprivation procedural protections or of adequate
rectification by any post-deprivation state remedies."
Sylvia, 48
49
Thus, to state either a procedural due process claim or a
substantive due process claim, Plaintiffs must allege a property
or liberty interest of which Defendants have deprived them.
only
such
liberty
interests
and
alleged
property
Plaintiffs allege
(Compl. H 195).
in
the
interests
include
in
Complaint
Clear
Sky
are
Car
The
Plaintiffs'
Wash,
"interests arising under the
which
[URA]."
Plaintiffs plead no facts suggesting that they
have been deprived of their property or liberty interests in the
Land
and
business
contrary,
as
to dismiss
the
Land
of
comprising
Sky
Car
Wash.
On
the
the time that briefing for all pending motions
had concluded,
and
Clear
continued
Plaintiffs
to
operate
remained in possession of
the
business
despite
instant litigation and the remanded Certificate of Take.
the
Thus,
although Plaintiffs have constitutionally protected interests in
Clear Sky Car Wash,
Plaintiffs
fail
to
allege
that Defendants
have deprived them of those interests.20
F.3d at 827
(4th Cir.
(quoting Rucker v.
Harford Cnty.,
946
F. Supp.
278,
281
1991)).
20 The Court notes that Defendant City, through counsel, filed a status
letter in this action on November 5,
2012.
(Docket No.
44).
Attached
thereto was a copy of a letter, dated October 31, 2012, from Defendant
City to Plaintiffs' counsel providing Plaintiffs with thirty (30) days
(Docket No. 44-1).
Plaintiffs'
notice to vacate Clear Sky Car Wash.
counsel filed a response letter on November 8, 2012, reiterating
Plaintiffs' position as stated in their response briefs to the pending
motions to dismiss.
(Docket No. 45).
And Defendant City filed a
brief reply letter on November 14, 2012 clarifying its prior filing.
(Docket No. 46) .
Nothing more has been filed indicating that
Plaintiffs have, in fact, been compelled to vacate Clear Sky Car Wash.
Therefore, despite the parties' recent filings, the Court still has
nothing before it suggesting that Plaintiffs have been deprived of
50
Instead,
Plaintiffs
allege
that
they
are
entitled
to
certain pre-deprivation rights of which Defendants have deprived
them by
failing
to
comply with the
URA's
policies.
However,
Plaintiffs do not have a constitutionally protected right to any
pre-deprivation
benefits
under
the
Fifth and Fourteenth Amendments.
in a benefit,
Due
Process
Clause
of
the
"To have a property interest
a person clearly must have more than an abstract
need or desire and more than a unilateral expectation of it.
He
must, instead, have a legitimate claim of entitlement to [such a
benefit]."
Town
of
Castle
Rock,
Colo,
v.
Gonzales,
545
U.S.
748, 756 (2005) (quoting Bd. of Regents of State Colls, v. Roth,
408
U.S.
564,
577
(1972))
(internal
quotation
marks
omitted).
An entitlement is not created by the United States Constitution.
their constitutionally protected interest in Clear Sky Car Wash as of
the date of this Opinion and Order.
Furthermore, even if Defendants
have deprived Plaintiffs of their property interest in Clear Sky Car
Wash, such deprivation would not run afoul of procedural due process
because, when the only alleged deprivation "is effectively a physical
taking, an inverse condemnation action for just compensation (which is
clearly available ... under state law) provides all the process to which
[Plaintiffs are] due."
Presley v. City of Charlottesville,
480, 489
(4th Cir.
2006) .
Additionally,
because such
464 F.3d
a post-
deprivation procedure is constitutionally sufficient to protect
Plaintiffs property and liberty interests in Clear Sky Car Wash, a
deprivation of those interests under federal or state eminent domain
power would not violate Plaintiffs' substantive due process rights, as
a violation of those rights requires an action "so arbitrary and
circumstance
or governmental
irrational,
so unjustified by any
interest, as to be literally incapable of avoidance by any [procedural
remedy]...."
Sylvia, 48 3d. at 827 (quoting Rucker, 946 F. Supp at
281)).
Thus,
even if Defendants have taken Clear Sky Car Wash,
thereby depriving Plaintiffs of their property and liberty interests
in Clear Sky Car Wash under the power of eminent domain, such
deprivation does not violate substantive due process so long as
adequate post-deprivation procedures are available.
51
Id.
"Rather,
[entitlements]
are
created
and
their
dimensions
are defined by existing rules or understandings that stem from
an independent source...."
693,
709
(1976)).
Id.
The
(quoting Paul v.
only
source
Davis, 424 U.S.
identified
in
Plaintiffs'
Complaint defining pre-deprivation benefits is the URA.
Court
has
found
independently
not
URA
have
the
enforceable
an
entitlement
giving
interest.
that
rise
At
to
most,
URA
does
federal
to
a
not
right.
give
Thus,
pre-deprivation
constitutionally
rise
to
an
Plaintiffs
do
benefits
protected
Plaintiffs had a unilateral
And the
under
the
property
expectation of
receiving certain benefits under the URA and such an expectation
is not
the
Due
enough to create a property interest
Process
Clause
of
the
Fifth
and
enforceable under
Fourteenth Amendments.
Because Plaintiffs have not been deprived of their property and
liberty interests in Clear Sky Car Wash and because Plaintiffs
had no constitutionally protected property interest in benefits
described in the URA, Count II fails to state a claim upon which
relief
can be granted and such count
is dismissed pursuant to
Rule 12(b)(6).
ii.
Count
Plaintiffs'
Amendment
III
alleges
right
to
Count III - Equal Protection
the
to
that
equal
United
Defendants
protection
States
knowingly
under
Constitution
the
by
violated
Fourteenth
"treating
Plaintiffs differently than similarly situated persons based on
52
animus."
(Compl.
H
200-01).
The Equal Protection Clause of
the Fourteenth Amendment provides that "No state shall ... deny to
any
person
within
laws."
U.S.
dismiss
on
Const,
an
sufficient
to
from
treatment
Equity
(4th Cir.
§ 1.
demonstrate
In Athletics,
2011)
XIV,
the
was
who
the
Inc.
equal
a plaintiff
plausibly
were
protection
that
similarly
he
must
was
situated
result
of
Dep't
of
Educ. ,
treated
that
animus."
F.3d
91,
108
239 F.3d 648,
654
2001)).
Plaintiffs
allegations
(citing Morrison v. Garraghy,
639
plead
and
discriminatory
v.
of
"[T]o survive a motion to
protection claim,
others
unequal
(4th Cir.
jurisdiction
amend.
equal
facts
differently
its
have
failed
with respect
to
to
either
plead
sufficient
element.
only the barest facts regarding Defendants'
others
"similarly
situated"
to
factual
Plaintiffs
plead
alleged treatment of
Plaintiffs.
Specifically,
Plaintiffs allege that Defendant City began acquiring parcels of
land for the Project " [n] o later than June 2010" (Compl. f 41)
and that Defendants failed to comply with the URA's provisions
"for some or all of
Project."
that,
(Compl.
contrary to
Defendants
treated
similarly situated,
the commercial property in the path of
H 105).
the
legal
the
These factual allegations suggest
conclusions
Plaintiffs
the
same
alleged
as
in
others
Count
who
III,
were
that is, other owners of commercial property
53
in the path of the Project.21
Plaintiffs'
Complaint
The only factual allegation in
suggesting
otherwise
is
contained
in
Paragraph 142, which states that "Defendants confirmed that they
had
previously
used
unit
footage
for appraisals
Even
if
the
ever
been
taken
Plaintiffs
such
considers
by
must
of
be
have
Where
identifying
a
any
in Athletics,
to
be
rather
dismissed
to
whose
equal
square
H 142).
property has
situated"
to
protection claim,
pursuant
plead
than
(Compl.
"similarly
Plaintiffs'
to
any
Rule
facts
12(b)(6)
suggesting
treatment was based on discriminatory
plaintiff
fails
discriminatory
decision makers,"
values
landowners
failed
that any alleged unequal
animus.
all
Defendants
still
Plaintiffs
site
related to takings."
for purposes
claim
because
Court
pad
to
intent
plead
on
facts
the
part
"plausibly
of
his equal protection claim must fail.
63 9 F.3d at
108.
Here,
the
the
...
Equity
factual allegations
pled detail only the financial circumstances of
the Project and
Defendants'
alleged motive
of
(Compl.
55-79).
H1I
establish
21
that
Plaintiffs
any
suggest
to
reduce
There are no
defendant
in
their
acted
the
cost
facts offered
with
responsive
the
Project.
to plausibly
discriminatory
briefs
that
intent
Defendants
complied with the provisions of the URA as to some properties in the
path of the Project but not others.
The Court does not consider this
allegation because Plaintiffs failed to make it in the Complaint.
The
Court may not consider factual allegations outside of the pleadings
when
ruling on a
motion
to
dismiss.
Fed.
R.
Civ.
P.
12(d).
Furthermore,
the Court declines to convert such motion to a motion for
summary judgment on such a bare allegation.
54
toward Plaintiffs.22
To survive a motion to dismiss under Rule
12(b)(6),
Plaintiffs
were
required
state
claim
relief
that
a
Twombly,
550
to
U.S.
at
570.
to allege
is
"enough facts
plausible
on
its
to
face."
"The plausibility standard is not
akin to a 'probability requirement, ' but it asks for more than a
sheer
possibility
Iqbal,
556
U.S.
at
that
a
678.
defendant
In
failing
suggesting discriminatory animus,
met
this
standard.
As
such,
has
to
acted
set
Plaintiffs'
Count
III
unlawfully."
forth
any
facts
Complaint has not
fails
to
state
a
claim
upon which relief can be granted and must be dismissed pursuant
to Rule 12(b)(6).
Plaintiffs
valid
equal
support
of
argue
that
protection
this
animus
claim.
argument,
is
not
(Docket
Plaintiffs
22 In one of their responsive briefs,
required
No.
19
rely
to
state
at
9
n.l).
on
the
a
In
Fourth
Plaintiffs allege that one of
Defendant City's officials stated that Plaintiff Jacknin "want[ed]
everything
'gold-plated'"
and
further
alleges
that
this
remark
constituted "an apparent derogatory reference to [Plaintiff Jacknin's]
heritage."
(Docket No. 19 at 9 n.l).
The Court declines to consider
this reference, as it was not pleaded in the Complaint and, pursuant
to Rule 12(d), the Court may not consider matters beyond the pleadings
without converting the motions
to dismiss
to
ones for summary
judgment.
Fed. R. Civ. P. 12(d).
The Court again declines to convert
the
motions
before
it
under
Rule
12(d)
on
such
a
bare
factual
allegation (one that does not even disclose Plaintiff Jacknin's
context
of
the
allegedly derogatory remark).
heritage nor the
Likewise, although Plaintiffs proffer that they are willing to amend
the Complaint to include this factual allegation, the Court finds that
such a bare allegation would be insufficient to plausibily establish
the requisite discriminatory animus.
See Equity in Athletics, 639
F.3d at
108.
amendment
to
Therefore,
the
the Court further declines to await any such
Complaint
before
before it.
55
considering
the
motions
currently
Circuit's
County,
2002
281
decision
F.3d 439
in
Tri-County
(4th Cir.
2002).
Paving,
The
Inc.
v.
Ashe
Court observes
that
more recent, published Fourth Circuit precedent expressly states
that
Plaintiffs
discriminatory
must
animus
plead
for
sufficient
their
equal
asserting
motion
that,
to
related
Court finds
noted,
of
of
alleged
whether
to
a
to
Equity in Athletics,
even if the Plaintiffs are correct in
absence
is
claim
animus,
the
legitimate
the
government
test
on
a
was
interest,
government
action
the
factual allegations contained in the Complaint
the
such
a
rational
relation.
As
the
Fourth
Circuit
has
the rational basis test is "the most deferential standard
review
Paving,
actual
in
dismiss
rationally
establish
However,
showing
protection
survive a Rule 12(b)(6) motion to dismiss.
639 F.3d at 108.
facts
...
under
the
Equal
281 F.3d at 439.
motives
are
Protection
Clause."
Under such an inquiry,
"irrelevant."
Id.
at
439.
Tri-County
the Defendants
"[T]he
relevant
question under rational-basis review is whether local officials
'reasonably
could
have
believed
that
[their]
action
was
rationally related to a legitimate governmental interest.'"
Id.
(quoting Front Royal & Warren Cnty. Indus.
Front
Royal,
government
135
resources
interest.
See,
(W.D.
1998)
N.C.
F.3d
e.g.,
275,
is
290
(4th
certainly
Park Corp. v. Town of
Cir.
1998)).
a
legitimate
Mitchell v. Apfel,
19 F. Supp.
(collecting cases) .
56
Thus,
Conserving
government
2d 523,
529
even if Plaintiffs
were not required to plead specific facts showing discriminatory
animus, they have failed to state an equal protection claim upon
which relief
contained
in
Defendants'
(quoting
can be
the
Complaint
actions.
Vill.
(2000)).
granted because the
of
supply
Tri-County
Willowbrook
Therefore,
Count
a
factual
rational
Paving,
281
v.
Olech,
is
dismissed
III
allegations
basis
at
439
U.S.
562,
564
pursuant
to
Rule
528
F.3d
for
12(b)(6).
iii.
Count IV - Civil Rights Actions
Count IV alleges rights of action under 42 U.S.C.
and 1985,
§ 1988.
as well as a right to attorneys'
As
noted
above,
jurisdiction pursuant
to 28
the
Court
U.S.C.
fees under 42 U.S.C.
may
§ 1331
exercise
original
over such
because "federal law creates the cause of action."
F.3d at 362.
§§ 1983
claims
Verizon,
377
The Court also notes that Congress has expressly
provided for jurisdiction over such claims in 28 U.S.C.
§ 1343
and the Court may exercise jurisdiction on this basis to the
extent
the
allegations
in
Count
entitling plaintiffs to relief.
see also Twombly, 550 U.S. at 570.
IV
state
See Fed.
R.
plausible
Civ.
P.
claims
8(a)(2);
Although it has jurisdiction
over Count IV, this Court finds for the reasons set forth below,
that Count IV fails
to
state a claim upon which relief can be
granted and thus should be dismissed pursuant to Rule 12(b)(6).
57
Section
1983
provides
a
federal
statutory
remedy
for
deprivations of rights secured by the United States Constitution
and
federal
statutes.
Philips
F.3d 176, 180 (4th Cir. 2009).
v.
Pitt
Cnty.
Mem'1
Hosp.,
572
It provides that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of
Columbia,
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 and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress....
42
U.S.C.
§ 1983.
To
allege
an action under
§
1983,
a party
must prove that the charged state actor "(1) deprived plaintiff
of
a right
States,
of
secured by the
and
the
(2)
that
referenced
Constitution and
572
F.3d at
398 U.S.
144,
150
of
the United
the deprivation was performed under color
sources
Philips,
laws
180
of
state
law
found
(citing Adickes
v.
in
S.H.
the
statute."
Kress
& Co.,
(1970)).
Section 1983 "is not itself a source of substantive rights,
but
[rather]
a method
for vindicating federal
conferred by those parts of
federal
U.S.
statutes
137,
144
n.3
that
it
elsewhere
the United States Constitution and
describes."
(1979) .
rights
Baker
v.
The only sources of
McCollan,
443
alleged federal
rights identified in Plaintiffs'
Complaint are the URA,
the Due
Process
Fourteenth
Amendments,
and
Amendment.
Because
Equal
Clause
of
Protection
the
Fifth
Clause
of
and
the
58
Fourteenth
the
the Court has found that no federal rights exist under the land
acquisition policies
of
sufficiently
any
plead
the URA,
and Plaintiffs
federal
rights
have
arising
failed to
under
the
relocation assistance policies of the URA, no federal rights are
alleged under the URA that support a
because
Plaintiffs
Process
Clause
of
have
the
failed
Fifth
to
and
§ 1983
state
claim.
claims
Fourteenth
Similarly,
under
Amendments
the
and
the Equal Protection Clause of the Fourteenth Amendment,
constitutional
§ 1983.
which
supports
a
claim
for
under
neither
relief
under
Because Plaintiffs allege no other federal rights,
because
law,
provision
Due
§1983
does
not provide
redress
for violations
of
and
state
Plaintiffs have failed to state a claim under § 1983 upon
relief
can
be
granted
and
Count
IV s
§
1983
claim
is
therefore dismissed pursuant to Rule 12(b)(6).
Count
IV
§ 1985(3),
also
which
alleges
provides
conspiracies to deprive
equal
protection
of
immunities under the
a
cause
a
of
action
federal
under
statutory
42
U.S.C.
remedy
for
"any person or class of persons of the
the
laws."
laws,
or
42 U.S.C.
of
§
equal
privileges
1985(3).
and
To survive a
motion to dismiss when a conspiracy is alleged, a plaintiff must
plead
facts
assertion
of
showing
"more
conspiracy....
not suggest conspiracy,
at
some
unidentified
than
'parallel
Without
more,
conduct
parallel
and
a
bare
conduct
does
and a conclusory allegation of agreement
point
does
59
not
supply
facts
adequate
to
show illegality.'"
A Soc'y Without a Name v. Virginia,
342,
2011)
346
Such
(4th Cir.
"factual
(quoting Twombly,
allegations
must
plausibly
550 U.S.
Additionally,
at 556-57).
suggest
rather than being merely consistent with agreement."
to state a claim under 42 U.S.C.
655 F.3d
agreement,
Id.
§ 1985(3),
a
plaintiff must prove:
(1)
a conspiracy of two or more persons,
(2) who are
motivated
by
a
specific
class-based,
invidiously
discriminatory animus to (3) deprive the plaintiff of the
equal enjoyment of rights secured by the law to all, (4)
and which results in injury to the plaintiff as (5) a
consequence of an overt act committed by the defendants in
connection with the conspiracy.
A Soc'y Without a Name,
47
F.3d
1370,
1376
655 F.3d at 346
(4th
Cir.
(quoting Simmons v. Poe,
1995)).
The
Fourth
Circuit
has
expressly held that a plaintiff alleging a § 1985 conspiracy is
required
[the]
to
"show
defendants
rights."
Id.
an
to
agreement
violate
(alterations
or
the
in
a
meeting
of
[plaintiff's]
original).
the
minds
by
constitutional
When
no
concrete
factual allegations are offered to support such a meeting of the
minds among defendants,
346-47.
Although
participated
in
the
the § 1985(3)
Plaintiffs
Project,
claim must fail.
allege
either
provision of financial assistance,
that
Id.
Defendants
directly
or
through
at
each
the
Plaintiffs fail to plead any
concrete facts showing an agreement among Defendants to violate
Plaintiffs'
constitutional
allegations amount to
rights.
"At
most,
[Plaintiffs']
'parallel conduct and a bare assertion of
60
a
conspiracy.'
dismiss."
This
Id.
is
at
not
347
enough
(quoting
(internal citation omitted).
Court's
Count
that
discussion
III,
of
Defendants
invidiously
have
were
at
1376) .
claim under
42
For
by
U.S.C.
§
a
Id.
in
at
reasons,
1985(3)
at
346
of
to
556)
observed in
any
any
is
U.S.
the
claim
facts
specific
Count
and
motion
Protection
allege
animus"
these
as
to
"motivated
interactions with Plaintiffs.
F.3d
Equal
a
550
Additionally,
failed
discriminatory
survive
Twombly,
Plaintiffs'
Plaintiffs
to
in
showing
class-based,
their
alleged
(quoting Simmons,
IV
fails
dismissed
to
47
state
pursuant
a
to
Rule 12(b)(6).
Section
fees
under
does
not
1988(b)
limited
provide
provides
courts
context of
a
cause
Council,
479 U.S.
discretion
to
state
have
award
noted
of
a
claim under
to
plead
§§
any
1983
of
action
at 12.
such
attorneys'
above,
for
§
fees
1988(b)
attorneys'
Rather,
properly pled civil rights actions,
failed
§ 1988(b)
recovery
As
standalone
alleged under §§ 1983 and 1985.
to
the
circumstances.
fees. Crest St. Cmty.
district
for
it gives
only
in
the
including those
Because Plaintiffs have failed
and
other
1985
civil
and because
rights
authorizes the recovery of attorneys'
cannot award Plaintiffs attorneys'
action
fees,
fees under § 1988(b)
aspect of Count IV must be dismissed.
61
Plaintiffs
for
which
the Court
and this
Fed. R. Civ. P. 12(b)(6).
In light of
the above
findings,
Count
IV is
dismissed in
its entirety for failure to state a claim upon which relief can
be granted.
D. Counts V and VI - Breach of Contract and Equitable Estoppel
Counts
common
V
law
estoppel.
and
VI
allege
principles
Plaintiffs
for
causes
breach
acknowledge
of
under
Virginia
contract
of
action
and
equitable
"that
jurisdiction for
two causes of action is purely supplemental."
13
n.2) .
Title
supplemental
district
claims
original
U.S.C.
jurisdiction
courts
that
28
are
have
so
in
related
under
Constitution."
to
gives
action
...
claims
in
the
III
of
§ 1367(a).
If
the
jurisdiction
should
be
promote
are
over
of
because
state
justice
as
the
383 U.S.
between
...
the
United
States
at 726.
It "need
is found to exist."
trial,
"the
state
Id.
a
parties,
Such
avoid
matter
of
by
claims
is
"[n]eedless
comity
procuring
Id.
original
dismissal
should
surer-footed reading of applicable law."
62
such
same case or
has
courts
as
the
other
within
court
before
both
all
district
well."
district
law
a
which
over
the
courts
Supplemental jurisdiction
Gibbs,
which
dismissed
dismissed
appropriate
decisions
claims
of
action
of
not be exercised in every case in which it
Id.
district
civil
they form part
is a discretionary doctrine.
(Docket No. 19 at
jurisdiction
Article
28 U.S.C.
1367(a)
"any
original
jurisdiction that
controversy
§
these
for
and
to
them
a
Because the Court
has dismissed Counts I through IV, the only counts alleging this
Court's original jurisdiction,
Counts V and VI
the Court finds that dismissal of
is appropriate pursuant to
the Supreme Court's
guidance in Gibbs, 383 U.S. 715.23
V.
For all
of
the
CONCLUSION
foregoing
reasons,
Defendants'
Motions
to
Dismiss are GRANTED.
The Clerk is REQUESTED to send a copy of
this Opinion and
Order to counsel of record for the parties.
IT
IS
SO ORDERED.
/sM&
Mark S.
Davis
United States District Judge
Norfolk, Virginia
December 18, 2012
23 Although the Court dismisses Count V on jurisdictional grounds, it
doubt as to whether such count states facts showing that
expresses
Plaintiffs
are
entitled to
relief.
See
Fed.
R.
Civ.
P.
8(a)(2).
In
order to create a legally binding contract under Virginia law, "the
parties must have a distinct intention common to both and without
doubt or difference" to be bound and any agreement entered into with
such
intention
requirements;
"must
it must
be
definite
and
certain
as
to
its
terms
identify the subject matter and spell
and
out the
essential commitments and agreements with respect thereto."
Dodge v.
Trs. of Randolph-Macon Women's Coll., 276 Va. 1, 5 (2008) (quoting
Progressive Constr.
v.
Thumm,
209 Va.
24,
30-31
(1968)).
Here,
Plaintiffs fail to allege any facts showing a common intention among
Plaintiffs and Defendants to be bound.
The Court agrees with
Defendant City that the facts alleged, at best, describe negotiations
between the parties that did not result in a final meeting of the
minds sufficient to create a legally enforceable agreement.
63
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?