City of Chesapeake Virginia v. Clear Sky Car Wash LLC
Filing
30
OPINION AND ORDER - the Court GRANTS the City's Motion to Remand and DENIES the Motion for Disbursement of Funds and the Motion to Dismiss as moot and this matter is REMANDED to the City of Chesapeake Circuit Court. The request for attorney's fees is also DENIED.. Signed by District Judge Mark S. Davis and filed on 9/5/12. (jcow, )
FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
SEP
Norfolk Division
5 2012
CLERK, US DISTRICT COURT
NORFOLK, VA
CITY OF CHESAPEAKE, VIRGINIA,
Plaintiff,
v.
Civil Action No.
CLEAR SKY CAR WASH,
2:12cvl95
LLC,
Defendant.
OPINION AND ORDER
This
motions:
matter
(1)
the
is
currently
City
of
71.1 (j)
of
Motion
the
the
Chesapeake's
Remand pursuant to 28 U.S.C.
(Defendant's)
before
§ 1447(c);
Rules
of
Civil
on
(Plaintiff's)
(2)
for Disbursement of
Federal
Court
several
Motion
to
Clear Sky Car Wash's
Funds
pursuant to
Procedure;
and
(3)
Rule
the
City's subsequent Motion to Dismiss pursuant to Rule 12(b)(6) of
the
Federal
Rules
fully briefed,
Remand
of
Civil
Procedure.
The
motions
have
been
a hearing was held May 30, 2012 on the Motion to
and Motion
for
Disbursement
of
Funds,
and
received and considered post-hearing briefs.
the
Court
has
Although the City
of Chesapeake has filed a request for a hearing on the Motion to
Dismiss,
after
examination
of
the
briefs
and
the
record,
Court has determined that a further hearing is unnecessary.
the reasons stated herein,
the
For
the Court GRANTS the City's Motion to
Remand,
DENIES
the Motion
for
Disbursement
of
Funds,
and DENIES
the Motion to Dismiss.
I.
On
March
FACTUAL AND PROCEDURAL HISTORY
22,
2012,
the
City
of
Chesapeake
("the
City")
filed a Certificate of Take in the Circuit Court for the City of
Chesapeake to gain a defeasible
by Clear Sky Car
quick-take
action1
initiative
Along
Wash
to
with
as
widen
the
11,
removal
of
initiating the instant
Clear
Sky
action.
filed
an
ECF No. 4.
a
The
the
in the
City
land owned
City instituted its
federally
Boulevard.
funded
No.
ECF
highway
Ex.
deposited
1,
$2.15
filed in this
court
case.
"Answer
Certificate
ECF No.
and
1.
Court
of
Counterclaim"
Take,
to
of
thereby
18,
this
ECF Nos.
2012,
removed
5,
6.
the City filed a Motion to Remand this
removed action to the City of Chesapeake Circuit Court,
of
Id.
On April 20, 2012, Clear Sky filed a Motion
On April 27, 2012,
lack
million
a notice
On April
for Disbursement of Funds in this removed case.
a
1.
as required by Va. Code § 25.1-305.
Clear Sky
state
interest
Sky") .
of
Certificate,
2012,
the
part
Dominion
into an escrow account,
On April
("Clear
fee
subject-matter
jurisdiction.
ECF
Nos.
alleging
8,
9.
Subsequently, on May 1, 2012, the City filed a response to Clear
1
The quick-take provisions of Va. Code §§ 25.1 and 33.1 allow
the Department of Transportation and the City to enter a
Certificate of Take prior to instituting formal condemnation
proceedings. Clear Sky removed the present action before the
City filed formal condemnation proceedings under Title 25.1.
Sky's Motion for Disbursement in the removed action,
interposing
no objections to the disbursement of funds by the Circuit Court
of
the
City
of
Chesapeake,
but
arguing
once
again
that
this
Court lacks jurisdiction and restating its arguments in favor of
remand.
ECF No.
11.
On May 4, 2012,
in further support of
Clear Sky filed its reply
its Motion for Disbursement of
Funds,
and
on May 8, 2012 it filed its opposition to the Motion to Remand.
ECF Nos.
13,
14.
Arguing that this Court had no jurisdiction,
its
Motion
May 14,
to
2012,
Remand.
Dismiss
the
counterclaim and memo
along with its
ECF Nos.
15,
16,
arguing
that
the
in
17.
On May 29,
City
2012,
to
Clear Sky filed a Sur-
improperly
the hearing held on May 30,
Remand
and
the
Motion
on
just one day
raised
new
supporting its Motion to Remand in its reply brief.
At
support
reply in support of the Motion to
before a scheduled hearing on the Motion,
Reply,
the City filed
for
2012,
arguments
ECF No. 20.
regarding the
Disbursement
of
Funds,
Motion
Clear
Sky
elaborated on its position that this Court has jurisdiction over
the
Certificate
requires
that
of
Take
federal
pursuant
agencies
to
42
receive
U.S.C.
§
assurances
4655,
which
from
their
state partners confirming that the state acquisition agency will
comply with
Property
policies.
the
federal
Acquisitions
Uniform Relocation
Policies
During argument,
Act's
Assistance
("URA")
land
Clear Sky appeared to
and
Real
acquisition
concede that
there is no basis for this Court to exercise jurisdiction under
42
U.S.C.
§
policies
4651,
to
agencies.
be
to
Clear
Sky
leave
Sky
exhaustion,
to
by
further
exercise
and
lays
followed
Clear
predicate
which
of
file
the
nine
and
argued
federally-funded,
that
City
The
brief
leave
acquisition
exhaustion
review.
supplemental
the
land
federal,
federal
a
granted
out
to
was
Court
on
the
file
a
not
a
granted
issue
of
supplemental
brief in response to arguments in Clear Sky's Sur-Reply as well
as to the exhaustion question.
On June 6,
on
June
20,
ECF Nos.
23,
2012, Clear Sky filed its supplemental brief and
2012,
the City filed its
final
supplemental brief.
28.
II.
LEGAL STANDARD
Clear Sky removed this matter on the basis of this Court's
"federal
question"
diversity
between
federal
court
jurisdiction.
the
parties,
There
and
jurisdiction rests
is
no
therefore
solely
upon
allegation
the
28
propriety
U.S.C.
§
of
of
1331.
In order for this Court to have "federal question" jurisdiction,
the
matter
must
"aris[e]
under
treaties of the United States."
the
United
States
"[t]here is no
an
action
Global
to
Naps,
Court
'single,
'arise
Inc.,
constitution,
28 U.S.C.
§ 1331.
Appeals
for
precise definition'
under'
377
of
the
federal
F.3d
355,
law."
362
(4th
the
laws,
or
According to
Fourth
Circuit,
of what it means for
Verizon
Cir.
Md.,
2004)
Inc.
v.
(quoting
Merrell Dow Pharm.
Inc.
v.
Thompson,
478
U.S.
804,
808
(1986)).
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.
federal
law.
(internal citations and quotations omitted).
Clear Sky claims
that the
property violated the
render
the
its
City
claims
City's
actions
land acquisition policies
necessarily federal
argues
in acquiring its
that
"federal
of the
in nature.
question"
In
URA and
contrast,
jurisdiction
is
not
bears
the
satisfied by alleged violations of the URA.
In
burden
remand
of
Columbia
(citing
(1921)).
cases,
the
establishing
Organic
Wilson
Chem.
v.
Co.,
29
removal
jurisdiction.
F.3d
Iron
148,
&
Steel
151
Mulcahey
(4th
Co.,
Cir.
257
v.
1994)
U.S.
92
This Court is also mindful that removal statutes must
strictly construed,
is
doubtful,
the
supporting
federal
Republic
be
Int'l
party
Union,
remand
640
propriety
of
is
F.3d
and in
cases
where
Id.;
599,
removal
605
(4th
should
see
Cir.
necessary.
federal
2011)
be
remanding the case to state courts.").
jurisdiction
also
resolved
Barbour
("Doubts
in
v.
about
favor
of
III.
DISCUSSION
Clear Sky alleges that during the "quick-take" proceeding,
the
City
URA,
of
Chesapeake
specifically
42
violated
U.S.C.
§§
several
4651
whether this Court has jurisdiction,
key
and
provisions
4655.
To
of
the
determine
the Court must first decide
whether the URA provides for federal review of violations of its
land acquisition policies.
A. The URA
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
relieve
promote
practices
principal
relocation
persons;
for
public
. . ."
congestion
in
confidence
the
the
in
assistance
Subchapter
that
federal
land
assure
programs,
acquisition
The Act consists of two
II,
be
determines
provided
creates
to
the
displaced
federal agencies to apply in land acquisition proceedings.
The
as it deals with the land acquisition inherent in
condemnation
There are
which
which
for
a
III,
many
to
guidelines
instant case,
Subchapter
shall
courts,
federal
42 U.S.C. § 4651.
subchapters:
and
owners
in
to avoid
nine
proceeding,
provisions
guided during
such
Clear Sky has
argued that
relates
only
which
federal
by
land acquisitions,
the
all
to
Subchapter
agencies
laid out
III.
should be
in § 4651.
City violated a number of
these
land
acquisitions
guidelines,
but
most
specifically
the
"independent appraisal" guideline of 42 U.S.C. § 4651(2).
The URA specifies
this title create no
the
validity
of
condemnation."
"the provisions
rights or
any
42
that
§
section 4651
of
liabilities and shall not affect
property
U.S.C.
of
acquisitions
4 602.
by
Therefore,
purchase
the
Act
or
itself
appears to state that § 4 651 does not create a federal right of
action on the part of landowners.
Clear Sky argues that even if federal review is unavailable
under
the
land
acquisition
jurisdiction still
exists
policies
under
laid
42 U.S.C.
to incorporate § 4651 against the states.
§
out
4655,
in
§
4651,
which
serves
Section 4655 provides
in relevant part that:
[T]he head of a federal agency shall not approve. . .
any program or
project which will result in the
acquisition of real property . . .unless he receives
satisfactory assurances from such acquiring agency
that - (1)
in acquiring real property it will be
guided, to the greatest extent practicable under State
law, by the land acquisition polices in section 4651
of this title.
42 U.S.C.
Clear
U.S.C.
review
§
4655.
Sky's
§ 4655 has
of
state
argument
its
court has stated,
flaws as
agency
federal agency action.
that
jurisdiction
exists
under
42
it would provide for a right of
action,
while
See 42 U.S.C.
the court "fails to
precluding
§ 4602.
As
review
of
one district
see how it lacks subject-
matter
jurisdiction to
section,
compliance
with
§
4651
under one
but has . . . the requisite jurisdiction to review such
compliance
975,
review
978
under
another."
(E.D. Wis.
Nelson
v.
Brinegar,
420
F.
Supp.
1976).
B. Case Law
The Fourth Circuit Court of
on
the
issue
However,
affirm
in
a
of
jurisdiction
unpublished
an
federal
decision,
Western
District
holding
that
consider
violations
2005
U.S.
"district
Dist
of
of
the
LEXIS
over
the
Virginia
courts
URA
do
district
not
*8
cases),
URA violations.2
Fourth
have
guidelines."
14146,
2005) (unpublished) (collecting
2
Appeals has not directly ruled
court
Starr
Va.
164
F.
v.
did
opinion
jurisdiction
(W.D.
aff'd
Circuit
to
Shucet,
July
15,
App'x
372
Clear Sky has claimed that the Fourth Circuit has decided the
issue
in
a
trio
of
cases:
M.M.
Crockin
Co.
v.
Portsmouth
Redev.
and Housing Auth.,
437
F.2d 784
(4th Cir.
1971);
City of
Columbia South Carolina v.
Costle,
710 F.2d 1009
(4th Cir.
1983); and American Dry Cleaners and Laundry, Inc. v. U.S. Dep't
of Transp., 722 F.2d 70 (4th Cir. 1983).
However, only one of
these cases dealt with land acquisition policies: M.M. Crockin
was authored before the URA went into effect, and American Dry
Cleaners relates only to the relocation assistance provisions of
the URA.
Though those cases may provide guidance on other
provisions of the URA, they are uninstructive on the issue of
federal jurisdiction over violations of the land acquisition
policies.
The Costle case, meanwhile, did not address the issue
of an individual
federal
claim under
the URA,
but
instead
determined the narrow issue of whether a state necessarily had
to give assurances under § 4655 as a predicate to receiving
federal funds, and further, whether it was then obligated to
comply with the provisions of § 4651.
The purely legal nature
of the inquiry, and the basic question of whether the URA even
applied, made the issue a federal question.
(4th Cir.
2006)
(per curiam affirmance "on the reasoning of the
district court").
This proposition seems to also be supported
by a number of other circuits which have ruled on the propriety
of
federal
judicial
circuits have
under
the
alleging
review
under
determined that
land
of
policies
that
URA.
there is no
acquisition
violations
the
portion
§
the
4651,
Act
See,
e.g.,
Delancey v.
570
F.3d
Cir.
2009)
(holding that
not
provide
private
right
of
National
R.R.
under
§
Inc.,
931
592
a
4625);
F.2d
438,
"reason that the
that
the
we
(6th
Cir.
plaintiffs'
since
§
443
action
1991)
City of Austin,
"the URA does
v.
damages"
Faber Enters.,
(concluding
1980)
have
4655
(finding
"no
Costle,
that
rights
incorporates
v.
or
§
§
615
reversal
the
to
Co.
for
that
is
Power
basis
either
here
Consumers
furnish a
be
monetary
Passenger Corp.
(7th Cir.
URA cannot
for
claims
no jurisdiction over a claim brought pursuant
have
Act");
(5th
of
and
must
remanded or dismissed.
590,
majority
federal jurisdiction
of
of
A
F.2d
4602
makes
liability"
under
1149,
4 651,
no
cause
of
1151
clear
§
that
4651,
action
and
under
federal law exists).
Yet
the
Circuits.
law
The
is
Third
not
so
Circuit
clearly
Court
of
stated
in
Appeals,
all
for
of
the
instance,
speaking in broad language in an opinion dealing with relocation
assistance,
against
has stated that "a private cause of action
state
officials
for
violations
of
the
[exists]
Housing Act
and
the
URA."
F.2d
Pietroniro
976,
(1985).
980
(3rd
v.
Borough
Cir.
of
1985),
Oceanport
cert,
New
denied,
Jersey,
764
U.S.
1020
474
Pietroniro's broad language implies a federal right of
action under any provision;
relocation
assistance
acquisition
Circuit
policies
determined
however,
under
§
that
4 625
of
§
4651.
that
§
4655
case dealt only with
and
Id.
was
not
with
the
Similarly,
reviewable
the
at
land
Ninth
least
to
determine whether a state agency had given sufficient assurances
to a federal agency before receiving federal funds.
Volpe,
455 F.2d 1111,
Notwithstanding
1125 (9th Cir.
its
1985
Lathan v.
1971).
Pietroniro
decision,
the
Third
Circuit has more recently displayed some doubt about whether the
URA actually does provide
Munoz v.
Cir.
City of
2009)
Philadelphia,
(unpublished)
(referencing
assistance
for a private cause of action.
a
portion
of
and
stating
"we
346
there
is
the
URA
highly
no
federal
jurisdiction
Supp. 969, 973-74
524
769 n.6
citations
dealing
doubt
omitted)
with
...
(3rd
relocation
42
U.S.C.
§
Meanwhile, the majority of
F.
Supp.
under
the
land
acquisition
See, e.g., New Orleans Aviation Board v. A
Portion of Square 2005,
Kemp,
766,
courts that have addressed the issue have held that
policies of the URA.
F.
App'x
(internal
4625(a) createfs] a private right").
the district
F.
See
and Square 209,
Kenner,
Louisiana,
(E.D. La. 1994); Bunker Properties,
109,
110-11
10
(D.
Kan.
1981);
866
Inc. v.
Nelson
v.
Brineqar,
420
Brineqar,
362 F.
weight
authority
of
F.
Supp.
975,
Supp.
*5-6
464,
472
from the
(E.D.
Wis.
(W.D. Mo.
federal
1976);
1973).
courts
Barnhart v.
Therefore,
suggests
that
the
this
Court does not possess jurisdiction to hear a claim when federal
question
jurisdiction
is
premised
solely
on
violations
of
the
land acquisition policies of the URA.
C. Legislative History
Clear Sky also points
support
for its
under the
of
argument
URA.
it
case
that
the
quite
Ed
clear
there
URA's
that a federal
In particular,
Representative
makes
to
who
stated
to
any eminent
be
would
full
(daily ed.
18,
1970)
that
history as
action exists
the
comments
"[the
senate]
or
condemnation
review
afforded.
insofar as
to accept this amendment."
Dec.
of
domain
judicial
believe it is agreeable to both sides,
is concerned,
right
Clear Sky looks to
Edmondson,
as
legislative
I
the committee
116 Cong.
H42506
Edmondson) .
(statement of Rep.
Rec.
Clear
Sky claims that this statement demonstrates a legislative intent
to
create
a
path
violations of §
Before
of
judicial
review
plain
255-56
the
examining
district
language of
(4th Cir.
at
the
very
least,
4655.
the
arguments
the legislative history of the URA,
Circuit
for,
courts
are
U.S.
v.
the
to
Ignacio v.
Hatcher,
11
parties
addressing
the Court notes that in this
required
the statute.
2012);
of
560
first
U.S.,
examine
674
F.3d 222,
the
F.3d 252,
226
(4th
Cir.
2009).
rule,
The
'when the
Hatcher
terms
court
of
a
observed
statute
are
that,
clear,
conclusive and courts are "not free to replace
language]
United
"[a]s
its
v.
1988) (quoting
Morison,
INS
v.
844
F.2d
general
language
is
. . . [that clear
with an unenacted legislative intent."'"
States
a
Id.
(quoting
1057,
1064
(4th
Cir.
408
U.S.
421,
453
Cardoza-Fonseca,
(1987))).
While there are two exceptionally rare exceptions to
this rule,
it is generally only where a court determines that a
statutory
provision
history.
Id.
ambiguous
that
it
looks
to
legislative
This Court finds that the plain language of the
URA does not
federal
is
appear to be
right
of action
ambiguous on
is created on
the
the
issue of whether a
part
of
landowners.
Section 4602 clearly states that "the provisions of section 4651
of
this
title
create
no
rights
or
liabilities
and
shall
not
affect the validity of any property acquisitions by purchase or
condemnation;"
Section
4651
is
then
against the states through Section 4655.
However,
for
purposes
of
directly
incorporated
See 42 U.S.C. § 4602.
completeness,
the
Court
will
nonetheless examine the arguments of the parties addressing the
URA's legislative history.
Federal
have
review
found
and
courts
that
that
the
prohibit
land acquisition.
have
looked
actions
it
for
of
the
to
the
Congress
portion
of
legislative
constrain
the
Act
record
judicial
regulating
The most noted opinion is that of Barnhart v.
12
Brinegar,
362
F.
district
court
Supp.
464
conducted
(W.D.
an
Mo.
exhaustive
legislative
history,
Edmondson.
Viewing the record as
that
the
the
including
congressman
House-Senate
decisions
regarding
replacement housing,
was
to
be
legislative
relocation
review
language
a whole,
of
of
Barnhart
the
URA's
Representative
the court concluded
expressing
viz.,
The
the
judicial
payments
Senate
review
and
end of
of
agency
assistance,
and title transfer and litigation expenses
governed
Procedure Act."
the
"was merely
compromise,
1973).3
by
the
existing
Id. at 472.
history,
law,
the
Administrative
Following a complete review of the
the
Barnhart
court
found
that
"one
conclusion is irresistible - Congress intended section [4602] to
preclude
judicial
review
of
federal
and
state
agency
under the real property acquisition practices of section
of the Act."
this
Court
is
Id.
Finding such decisions to be well
unpersuaded
by
Clear
Sky's
actions
[4 651]
reasoned,
legislative
history
argument.
3
The Fifth,
Seventh,
Eighth,
and Eleventh Circuit Court of
Appeals
have
adopted
the
Barnhart
analysis
of
the
URA's
legislative history.
See Ackerley Communications of Florida,
Inc. v. Henderson, 881 F.2d 990, 992 (11th Cir. 1989); United
States v. 320.0 Acres of Land, More or Less in Monroe County,
State of Fla., 605 F.2d 762, 823 (5th Cir. 1979); Roth v. U.S.
Dept. of Trans., 572 F.2d 183, 184 (8th Cir. 1978); Rhodes v.
City of Chicago for Use of Sch., 516 F.2d 1373, 1378 (7th Cir.
1975).
13
D. Gonzaga and Federal Right of Action
This
Court
is
further
guided by
the
principles
by the 2002 Supreme Court decision in Gonzaga Univ.
U.S.
273
(2002).
In
Gonzaga,
the
Supreme
elucidated
v. Doe,
Court
536
considered
whether a federal right of action existed under 42 U.S.C.
§ 1983
for violations of the Family Educational Rights and Privacy Act
("FERPA"),
and in doing so it explained the set of circumstances
under which a federal statute gives
action.
The
provisions,
'speak[s]
intent
to
Court
and
with
examined
reiterated
a
clear
confer
v.
its
variety
and
Halderman,
451
of
federal
funding
"unless
Congress
manifests
rights,"
Id. at 280
a private right of
that
position
voice,'
individual
private enforcement.
and Hosp.
a
rise to
there
an
is
'unambiguous'
no
basis
for
(citing Pennhurst State School
U.S.
1,
17
(1981)).
Although
the
Court was analyzing a right to private action under § 1983, it
acknowledged that
statute
confers
"the
any
initial
right
at
inquiry - determining whether a
all
-
is
no
different
initial inquiry in an implied right of action case."
(citing
California
v.
Sierra
Club,
451
U.S.
287,
from
the
Id. at 285
294
(1981)).
To determine whether Congress exhibited an unambiguous intent to
create a private
right
Court
three
considered
included
specific,
of
action via
primary
the
factors:
rights-creating
FERPA provision,
the
(1)
the
Act
whether
the
language;
whether
(2)
language was couched as having an individual or aggregate focus;
14
and
(3)
the audience to whom the language was directed,
strength of that language.
Only one
federal
Id. at 290.
Court
of Appeals
has
analysis to the provisions of the URA.
Austin,
§
570
4625,
F.3d 590,
which
and the
592
(5th Cir.
provides
for
applied
the
Gonzaga
See Delancey v. City of
2009).
advisory
That court examined
programs
to
displaced
persons under the relocation assistance portion of the URA,
determined
that
there
right of action.
relocation
assistance
lacked
no
Congressional
Although the
Gonzaga analysis
court
was
Delancey court was
provision
to the Act
jurisdiction
intent
addressing a
as a whole and concluded that
the
URA
URA,
a
the
the
the
create
applied
over
under
to
and
in
it
its
entirety.
The
Fifth Circuit found that the URA lacks rights-creating language,
and
is
toward
URA
directed
the
toward
individuals
provisions.
Id.
the
who
at
head
were
of
to
595.
the
receive
"unambiguous"
4625.
federal
right
the
Therefore,
determined that under the Gonzaga test,
an
agency,
of
rather
benefit
the
Fifth
than
of
the
Circuit
Congress had not created
action
for
violations
of
§
Id.
The
Delancey
court's
analysis
appears
analogous
to
an
examination of the land acquisition portion of the URA at issue
in this
directed
case.
The
toward
individuals
language in § 4651 and
the
receiving
federal
the
agency,
benefits
15
of
§ 4655
is similarly
and
not
toward
the
the
land
acquisition
policies.
Additionally,
directed
to
the
identifying
any
individual
right
the
land
aggregate.
specific
of
acquisition
In
other
the
words,
and
"person"
action,
provisions
thereby
provision
encourage and expedite the
real
property."
U.S.C.
does
not
create
it directs
42
§
4651.
a bright-line
standard of
that
it
an
is
acquisition of
the
statute
compliance:
funds
than
implying
Furthermore,
federal agencies to distribute
agency agrees to "be guided,
rather
states
created "in order to
are
instead,
when the state
to the greatest extent practicable
under State law" by the policies.
Id.
Furthermore,
instead of
rights-creating language, there is rights-limiting language in §
4602
which
"creates
Thus,
after
no
rights
or
liabilities."
42
U.S.C.
§
4602.
circuits,
an
examination
of
the
case
a review of the legislative history,
the statute with the guidance
URA does not provide
of Gonzaga,
for a federal
law
in
various
and a reading of
it appears that the
right of action
under the
land acquisition policies of § 4651, either by federal agencies
or as incorporated against the states via § 4655.
IV.
APPLICATION TO THIS CASE
The initial action in this removed case was the filing of a
Certificate
The
of Take,
Certificate
of
pursuant
Take,
to Va.
which
is
Code.
§§
clearly
25.1
and
tied
acquisition of defeasible title to a piece of property,
16
to
33.1.
the
appears
to
only
implicate
Therefore,
as
the
land
explained
acquisition
above,
there
policies
is
no
of
the
federal
URA.
right
of
review pursuant to the provisions of § 4651.4
Because
does
not
does
not
Motion
this
action
provide
have
to
for
is
based
federal
review
subject-matter
Remand
to
the
upon
City
land
under
acquisition,
the
jurisdiction.
of
URA,
which
this
Court
Therefore,
Chesapeake
Circuit
Court
the
is
GRANTED.
V.
The
MOTION FOR DISBURSEMENT OF FUNDS AND MOTION TO DISMISS
Court's determinations
above with
respect
to the City
of Chesapeake's Motion to Remand renders moot both Clear Sky's
Motion
Dismiss,
4
for
Disbursement
of
Funds
and
the
City's
Motion
to
and the Court will DENY them on that basis.
Clear Sky also mentioned in its briefings that it had been
denied relocation benefits under Subchapter II of the Act.
The
Court
acknowledges
that
the
language
in
Subchapter
II is
mandatory and clearly outlines the beneficiaries of that portion
of
the Act
("displaced person") .
Therefore,
there is
an
argument to be made that federal question jurisdiction exists
under that portion of the Act.
However, the Court need not
determine whether there is jurisdiction to consider violations
of the relocation assistance provisions of the URA, as those
claims arise only in briefings. The Certificate of Take, which
functions as the "complaint" in this action, does not implicate
relocation assistance.
Under the well-pleaded complaint rule,
the complaint itself must establish that the action arises under
federal
Laborers
(1983) .
law.
Franchise
Vacation
Trust
Tax
for
Bd.
S.
17
of
State
of
California,
Cal.
463
v.
U.S.
Constr.
1,
11
VI.
Finally,
motion
to
payment
the City has
"An
order
just
costs
and
of
§ 1447(c).
Franklin
incurred as
The
turn
test
on
the
Capital
for
Corp.,
only
reasonable
where
basis
any
fees
case
may
expenses,
546
of
U.S.
the
of
28
U.S.C.
attorney's
removal."
132,
require
including
a result of the removal."
requiring payment
in their
141
fees
Martin
(2005)
v.
("Absent
courts may award attorney's fees under §
the
for
there
the
actual
removing
seeking
party
is
a
lacked
removal.
objectively reasonable basis exists,
Although
attorney's
remanding
reasonableness
unusual circumstances,
1447(c)
requested
remand.
attorney fees,
"should
REQUEST FOR ATTORNEY'S FEES
wealth
an
objectively
Conversely,
when
an
fees should be denied.").
of
authority
stating
that
the
URA does not provide for federal review of its land acquisition
policies,
case
the
law.
Court
In
a
acknowledges
light
the
there
conflicting
by
the
contradictory
authority,
Circuit
the
Court
of
Appeals,
the Court does not find that Clear Sky was objectively
removing the action.
Fourth
and
of
in
decision
is
absence
unreasonable
clear
of
that
Therefore,
the request
for
attorney's fees is DENIED.
VII.
For
Remand
all
is
of
the
GRANTED,
CONCLUSION
foregoing
as
reasons,
this
Court
Plaintiff's
lacks
Motion
subject-matter
jurisdiction over a condemnation proceeding instituted in
18
to
state
court
of
and
without
action.
the
a necessary federal
Furthermore,
Motion
to
the
question or
Motion
for
individual
Disbursement
Dismiss
are
both
DENIED
DIRECTED
to
send
a
as
moot,
right
of
Funds
and
this
of
this
matter is REMANDED.
The
Clerk
is
certified
copy
Opinion and Order to the Clerk of the Circuit Court for the City
of Chesapeake, as well as a copy to counsel for the parties.
IT IS
SO ORDERED.
ffltf^
/s/l
Mark S.
Davis
United States District Judge
September _5 , 2012
Norfolk, Virginia
19
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