City of Chesapeake Virginia v. Clear Sky Car Wash LLC, No. 2:2012cv00195 - Document 30 (E.D. Va. 2012)
Court Description: 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, )
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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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