DeCoster v. Waushara County Highway Department et al

Filing 26

ORDER granting 15 Motion for Summary Judgment. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

RONALD DECOSTER,
Plaintiff,
v.

Case No. 17-C-1623

WAUSHARA COUNTY HIGHWAY DEPARTMENT, et al.,
Defendants.

ORDER GRANTING SUMMARY JUDGMENT

Plaintiff Ronald DeCoster brought this action against Defendants Waushara County and the
Waushara County Highway Department (collectively “the County”) seeking compensation for
litigation costs and expenses, including attorney’s fees, incurred in connection with an alleged taking
of his property by the County. DeCoster asserts his claim for compensation under the Uniform
Relocation Assistance, Acquisition and Real Property Policies Act of 1970 (the “URA”), 42 U.S.C.
§ 4601, et seq., as well as 49 C.F.R. § 24.107 and Wis. Stat. § 32.19(3)(d). He also seeks damages
under 42 U.S.C. § 1983. The court has jurisdiction under 28 U.S.C. § 1331. The case is before the
court on the County’s motion for summary judgment. For the reasons that follow, the County’s
motion will be granted and the case dismissed.
BACKGROUND
DeCoster and his wife, Nicole, own land located at N6190 County Road I in Fremont, which
is in Waushara County, Wisconsin. DeCoster Aff. ¶ 1, ECF No. 21. In the fall of 2009, the
Wisconsin Department of Transportation (WisDOT) authorized a reconstruction project on County
Trunk I. Def.’s Proposed Material Facts (DPMF) ¶ 1, ECF No. 18 (citing Compl. ¶ 8, ECF No. 1).

The reconstruction project relied largely on funding from the federal government, although WisDOT
also contributed some funds for the project costs. Id. ¶ 2 (citing Compl. ¶ 10). Part of the project
included reconstruction of a highway bridge over Alder Creek, which runs east to west and cuts
across the DeCosters’ property. Id. ¶ 3 (citing Compl. ¶ 12). Because the bridge was adjacent to
the DeCosters’ property, the reconstruction projected affected a parcel of their property containing
approximately 300 feet of fencing. Id. ¶ 5; Compl. ¶ 16; Pl.’s Statement of Facts (PSF) ¶¶ 4–5, ECF
No. 23.
The County believed that the fence encroached four feet onto the highway right of way, but
DeCoster maintained that it was properly on his property. DPMF ¶¶ 5–6; PSF ¶ 5. When the
County asked DeCoster to apply for a revocable occupancy permit, which would have allowed the
fence to remain in place subject to removal if necessary, DeCoster declined the request. DPMF
¶¶ 7–8; PSF ¶ 7. Subsequently, the County issued an order under Wis. Stat. § 83.01(7)(f) to remove
the fence. DPMF ¶ 9. DeCoster refused to comply with the order, so the County commenced an
action in the Waushara County Circuit Court to secure removal under Wis. Stat. § 86.04. DPMF
¶¶ 9–10 (citing Compl. ¶ 17). The DeCosters filed a counterclaim for inverse condemnation. Id.
¶ 11 (citing Compl. ¶ 18).
In January 2013, the circuit court approved a stipulation between the DeCosters and the
County. See Stip., ECF No. 1-1 at 7–9. Under the stipulation, the County agreed to pay the
DeCosters $7,948.24 in exchange for a quitclaim deed to two parcels of land. Stip. ¶ 1. Although
the County expressly maintained that no taking had occurred, it also agreed that the court could treat
its acquisition of the property as a taking for the limited purpose of determining whether the
DeCosters could recover their litigation expenses under Wis. Stat. § 32.28. Stip. ¶ 2. DeCoster

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provided the County with the quitclaim deed in May 2013, and the County now owns the disputed
parcel. DPMF ¶ 15 (citing Compl. ¶ 20).
In the subsequent litigation regarding their efforts to recover their litigation expenses, the
DeCosters sought a $110,000 reimbursement. Compl. ¶ 21. After holding an evidentiary hearing
and considering post-hearing briefing, the circuit court issued an extensive memorandum decision
in December 2013 awarding litigation expenses of $31,560.91 to the DeCosters. DPMF ¶¶ 17–18;
Compl. ¶ 21; see also ECF No. 17 at 9–58. The circuit court reasoned that the DeCosters’ litigation
expenditures were reasonable through April 2011—when the County offered a settlement similar to
the ultimate stipulated sale amount—but all subsequent expenses incurred were not. ECF No. 17
at 43. After the circuit court entered judgment in January 2014, the DeCosters appealed, but the
Wisconsin Court of Appeals affirmed the circuit court’s decision and the Wisconsin Supreme Court
denied their petition for review. DPMF ¶¶ 19–21 (citing Compl. ¶ 22). The County ultimately
issued a check to the DeCosters for $31,560.91, but the DeCosters have not cashed that check. Id.
¶ 22 (citing Compl. ¶ 24).
LEGAL STANDARD
Summary judgment is appropriate when the moving party shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). All reasonable inferences are construed in favor of the nonmoving party.
Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for
summary judgment must “submit evidentiary materials that set forth specific facts showing that there
is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (quoted
source and internal quotation marks omitted). “The nonmoving party must do more than simply
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show that there is some metaphysical doubt as to the material facts.” Id. Summary judgment is
properly entered against a party “who fails to make a showing sufficient to establish the existence
of an element essential to the party’s case, and on which that party will bear the burden of proof at
trial.” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotation
mark omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
ANALYSIS
The URA serves the express purpose of “establish[ing] a uniform policy for the fair and
equitable treatment of persons displaced as a direct result of programs or projects undertaken . . .
with Federal financial assistance.” 42 U.S.C. § 4621(b). The URA accomplishes this goal, at least
in part, by providing that the head of a federal agency may not approve the use of federal financial
assistance by an acquiring state agency without receiving assurances that property owners will be
reimbursed for necessary expenses as provided for in 42 U.S.C. §§ 4653 and 4654. 42 U.S.C.
§ 4655(a)(2). As relevant here, § 4654(a) provides that an agency acquiring real property “shall
award the owner of any right, or title to, or interest in, such real property such sum as will in the
opinion of the court reimburse such owner for his reasonable costs, disbursements, and expenses,
including reasonable attorney, appraisal, and engineering fees, actually incurred because of the
condemnation proceedings.” (Emphasis added.) In turn, 49 C.F.R. § 24.107(c) clarifies that “[t]he
owner of the real property shall be reimbursed for any reasonable expenses, including reasonable
attorney, appraisal, and engineering fees, which the owner actually incurred because of a
condemnation proceeding, if . . . [t]he Agency effects a settlement of such proceedings.”1 Wisconsin

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As a political subdivision of the state, the County satisfies the definition of “Agency” in the
regulation. See 49 C.F.R. § 24.2(a)(1); see also 42 U.S.C. § 4601(3).
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law expressly incorporates these URA provisions into state condemnation law, providing that, “in
the case of a program or project receiving federal financial assistance, a condemnor shall . . . make
any additional payment required to comply with the federal [Uniform Act], 42 USC. 4601 to 4655,
and any regulations adopted thereunder.” Wis. Stat. § 32.19(3).
The URA does not provide for an express private right of action that would permit DeCoster
to proceed against the County on a claim for litigation expenses. See Delancey v. City of Austin,
570 F.3d 590, 593 n.4 (5th Cir. 2009). Consequently, DeCoster’s assertion that the County failed
to pay his reasonable litigation expenses turns upon whether the URA created an implied private
right of action that would allow him to proceed on a claim for damages under 42 U.S.C. § 1983.
Critically, “[i]n order to seek redress through § 1983, . . . a plaintiff must assert the violation of a
federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340
(1997). An evaluation of three factors can assist the court in determining whether a federal statute
creates a private right enforceable under § 1983:
First, Congress must have intended that the provision in question benefit the plaintiff.
Second, the plaintiff must demonstrate that the right assertedly protected by the
statute is not so “vague and amorphous” that its enforcement would strain judicial
competence. Third, the statute must unambiguously impose a binding obligation on
the States. In other words, the provision giving rise to the asserted right must be
couched in mandatory, rather than precatory, terms.
BT Bourbonnais Care, LLC v. Norwood, 866 F.3d 815, 820 (7th Cir. 2017) (quoting Blessing, 520
U.S. at 340–41). These factors, however, “set the bar high,” as “nothing ‘short of an unambiguously
conferred right [will] support a cause of action brought under § 1983.’” Planned Parenthood of
Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 968 (7th Cir. 2012) (alteration in
original) (quoting Gonzaga University v. Doe, 536 U.S. 273, 283 (2002)). “Accordingly, where the

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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, whether under § 1983 or under an implied right of action.”
Gonzaga, 536 U.S. at 286.
Although the Seventh Circuit has not addressed whether the URA gives rise to a private right
of action enforceable under § 1983, DeCoster directs the court’s attention to Pietroniro v. Borough
of Oceanport, 764 F.2d 976 (3d Cir. 1985). There, the Third Circuit concluded without significant
analysis 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.” Id. at 980 (citing Maine v. Thiboutot, 448 U.S. 1 (1980)).
But that decision predates the Supreme Court’s Gonzaga opinion, in which the Court expressly
rejected the idea that a cause of action exists in the absence of an “unambiguously conferred right.”
536 U.S. at 283.
The Fifth Circuit’s post-Gonzaga decision in Delancey v. City of Austin provides a more
persuasive analysis concluding that the URA does not give rise to an implied private right of action
enforceable under § 1983. 570 F.3d 590 (5th Cir. 2009). There, the plaintiffs argued that a private
right of action arose under 42 U.S.C. § 4625(b)–(c). Subsection (b) provides that the “head of any
displacing agency” must “ensure that the relocation assistance advisory services described in
subsection (c) . . . are made available to all persons displaced by such agency.” Id. Concluding that
the URA did not show evidence of an implicit intent by congress to create a private right of action,
the Fifth Circuit noted that § 4625(b) directs its mandate at an agency head, rather than individuals
benefitted by the statute, like the statute in Gonzaga that did not give rise to a private right of action.
Delancey, 570 F.3d at 594 (“Statutes that focus on the person regulated rather than the individuals
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protected create ‘no implication of an intent to confer rights on a particular class of persons.’”
(quoting Alexander v. Sandoval, 532 U.S. 275, 289 (2001))). Also significant to the Fifth Circuit
was the fact that § 4625 speaks in terms of establishing a uniform policy or practice for
implementation, rather than “rights-creating language like that in Titles VI and IX.” Id. at 594–95.
For these same reasons, 42 U.S.C. §§ 4654 and 4655 do not, as DeCoster contends, give rise
to an implied private right of action. As already noted, § 4655(a) permits “the head of a Federal
agency” to approve federal financial assistance for certain state agency projects only if the acquiring
agency, among other things, provides adequate assurance that property owners will be reimbursed
for certain expenses. Section 4654(a) then defines the substance of the reimbursable expenses, which
include attorney, appraisal, and engineering fees incurred because of condemnation proceedings.
Rather than establishing a “right” to the reimbursement of certain kinds of expenses, these sections
direct federal agency heads to exercise their discretion to approve the use of federal funds in certain
limited ways. These sections therefore fail to unambiguously confer a right in the manner necessary
to imply the existence of a private cause of action under Gonzaga. See also Hoeft v. City of Beaver
Dam, No. 2014AP2790, 2015 WL 3887035, ¶¶ 30–33 (Wis. Ct. App. June 25, 2015) (concluding
that URA, specifically 42 U.S.C. §§ 4601 and 4651, does not give rise to a private cause of action).
Absent an implied private cause of action under the URA, Plaintiff cannot proceed directly under the
URA in Count I of his complaint or under 42 U.S.C. § 1983 in Count II.
To the extent that DeCoster seeks recovery of his litigation expenses under Wis. Stat.
§ 32.19(3)(d), his claim is precluded by the state court judgment. As noted above, when a project
relies on federal financial assistance, Wis. Stat. § 32.19(3)(d) requires that a condemnor make any
payments required by the URA. But DeCoster has already obtained a final judgment on the merits
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of his claim for litigation expenses under Wisconsin law in state court. He has no legal right to seek
a second determination of his recoverable expenses in federal court. The Supreme Court has held
that 28 U.S.C. § 1738 implements the Constitution’s Full Faith and Credit Clause and “requires
federal courts to give the same preclusive effect to state court judgments that those judgments would
be given in the courts of the State from which the judgments emerged.” Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (internal quotation mark omitted) (quoting Kremer v.
Chem. Constr. Corp., 456 U.S. 461, 466 (1982)).
Under Wisconsin law, an earlier judgment has preclusive effect on a subsequent claim when
there is “(1) an identity between the parties or their privies in the prior and present suits; (2) an
identity between the causes of action in the two suits; and (3) a final judgment on the merits in a
court of competent jurisdiction.” N. States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525
N.W.2d 723, 729 (1995). To evaluate identity of causes of action, Wisconsin uses the “transactional
approach,” which “connotes a common nucleus of operative facts” and reflects “the expectation that
parties who are given the capacity to present their ‘entire controversies’ shall in fact do so.” Fed.
Nat’l Mtg. Assoc. v. Thompson, 2018 WI 57, ¶ 36, 2018 WL 2374894 (quoting Kruckenberg v.
Harvey, 2005 WI 43, ¶¶ 26–27, 279 Wis. 2d 520, 694 N.W.2d 879). The state court judgment on
DeCoster’s previous claim for litigation expenses clearly satisfies the conditions required to preclude
any claim DeCoster could assert for litigation expenses in this court: DeCoster and the County were
both parties to the suit before the circuit court, DeCoster sought reimbursement for his reasonable
litigation expenses, the circuit court entered a judgment on the merits finding only some of his
litigation expenses reasonable, and DeCoster pursued all available options for review in the
Wisconsin Court of Appeals and the Wisconsin Supreme Court. DeCoster now seeks to recover
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additional litigation expenses that were rejected in the state court proceeding. The earlier state court
judgment precludes any such claim. And since the court has already determined that he is precluded
from raising a Wisconsin law claim for litigation expenses here, there is no need to address the merits
of the County’s Rooker–Feldman argument.
CONCLUSION
For the foregoing reasons, the County is entitled to judgment as a matter of law on both
counts in DeCoster’s complaint. The County’s motion for summary judgment (ECF No. 15) is
therefore GRANTED, and this action is dismissed. The Clerk is directed to enter judgment
accordingly.
SO ORDERED this 30th day of May, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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