By Matthew Meyers
As part of its plan to widen a main thoroughfare (US Route 17), the City of Chesapeake initiated a “quick take” proceeding to take a piece of property owned by Clear Sky Car Wash, LLC. Under § 33.1-120 of the Virginia Code, a city can take property by filing a certificate of take and depositing “the fair value of the land” with the court. The City deposited $2.15 million for Clear Sky’s property when it initiated the quick take proceeding. Clear Sky, believing the appraisal, negotiation, and procedure of the taking to be faulty, sued the City. It alleged, inter alia, that the City had violated Clear Sky’s rights under the Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA), 42 U.S.C. § 4651. § 4651 details a number of policies that “heads of Federal agencies shall . . . be guided by” in acquiring land for public use.
The district court dismissed Clear Sky’s claims under the URA. It concluded that the URA did not create a private right of action for landowners. Clear Sky appealed the district court’s decision, but the Fourth Circuit agreed with the district court’s reasoning and affirmed.
The Fourth Circuit panel articulated the general rule for deciding whether a statute creates a private right of action: the question is “whether Congress intended to create a federal right.” Statutory construction is the principle means used to determine that intent. Congress must declare “unambiguously” that it intends to create a private right of action with the statute.
Although § 4651 only expressly applies to “heads of Federal agencies,” since the City of Chesapeake used federal funds to expand US Route 17, the Fourth Circuit panel found that, pursuant to § 4655, it was subject to § 4651. As the panel notes, even assuming this, § 4651 does not create a private right of action. The language of the provision is directed at agency heads, not landowners. Furthermore, 42 U.S.C. § 4602(a) states, “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.” Therefore, if anything, Congress declared unambiguously that no private right of action exists under § 4651.
Clear Sky argued on appeal that § 4602(a) only applies to § 4651. In its view, this omission manifests Congress’s intent to permit a private right of action against state agencies. The panel disputed this interpretation:
This argument, however, overlooks the respective roles of §§ 4651 and 4655 and their relationship to each other. Section 4655 does not independently create any policies. Rather, it serves only to extend the § 4651 policies to state agencies when those agencies use federal funds to acquire real property. It is § 4651 that provides the source for the mandated substantive policies, and those policies are expressly qualified by § 4602(a), which rejects their use as a basis for a right of action.
Clear Sky’s other arguments, under § 1983 and the APA, were also rejected.