James Osher, Plaintiff - Appellant, v. City of St. Louis, Missouri, Defendant, Land Clearance for Redevelopment Authority of St. Louis, Defendant - Appellee, St. Louis Development Corporation, Defendant, National Geospatial-Intelligence Agency, Defendant - Appellee, Twenty-Second Judicial Circuit State of Missouri; Otis Williams; Laura Costello, in their official and personal capacities, Defendants.
No. 17-2401
United States Court of Appeals For the Eighth Circuit
September 6, 2018
Submitted: June 28, 2018
Appeal from United States District Court for the Eastern District of Missouri - St. Louis
Submitted: June 28, 2018
Filed: September 6, 2018
Before COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.
James Osher sued the St. Louis Land Clearance for Redevelopment Authority and the National Geospatial-Intelligence Agency after the Redevelopment Authority condemned Osher‘s property under its power of eminent domain. Osher sought to enjoin the condemnation proceedings and to obtain relocation benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act,
I.
The district court dismissed this case at the pleading stage, so we take the allegations in Osher‘s complaint as true. In 2012, the National Geospatial-Intelligence Agency announced its intention to move its western headquarters in St. Louis to a new location. To help persuade this employer to remain in the locale, the City of St. Louis sought to secure an attractive site for the Agency‘s new headquarters. The City‘s proposed site in north St. Louis
While the state court action was pending, Osher brought suit in the district court and moved for a temporary restraining order, preliminary injunction, and permanent injunction against the condemnation proceedings. He alleged, among other things, that the Redevelopment Authority and the Agency violated the Uniform Relocation Assistance and Real Property Acquisition Policies Act (the “Act“),
At a hearing on the motion, the district court determined that the parties agreed on the following additional facts. In the state court proceedings, Osher did not challenge the Redevelopment Authority‘s right to condemn his property, and the Redevelopment Authority took title to the property after paying the property‘s fair market value of $810,000 plus interest. After Osher refused to vacate the property,
The district court ultimately denied Osher‘s motion and dismissed all of his claims. Citing the pending state court condemnation proceedings, the court abstained from exercising jurisdiction over Osher‘s claim against the Redevelopment Authority under the doctrine of Younger v. Harris, 401 U.S. 37 (1971). The court dismissed Osher‘s claim against the Agency on the grounds that
II.
Osher noticed an appeal on June 16, 2017, “from the final judgment entered in this matter on May 2, 2017.” The Agency agrees that we have appellate jurisdiction, but the Redevelopment Authority argues that the notice was untimely. As timeliness under a statutory deadline is jurisdictional in a civil appeal, Bowles v. Russell, 551 U.S. 205, 210-13 (2007), we consider the question as to the entire appeal.
Osher had “60 days after entry of the judgment or order appealed” in which to file a notice of appeal.
There is a second reason to be confident that Osher‘s notice of appeal was timely. “The entry of a judgment triggers the running of the time for appeal,” Jeffries v. United States, 721 F.3d 1008, 1012 (8th Cir. 2013), and “[e]very judgment ... must be set out in a separate document.”
On the merits, Osher challenges the district court‘s dismissal of his claims against the Agency under the Uniform Relocation Assistance and Real Property Acquisition Policies Act. He disputes the district court‘s conclusion that there is no private right of action under the statute.
The Act provides in relevant part:
Whenever a program or project to be undertaken by a displacing agency will result in the displacement of any person, the head of the displacing agency shall provide for the payment to the displaced person of—
(1) actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property; [and] . . .
(3) actual reasonable expenses in searching for a replacement business or farm. . . .
“[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979). “Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Section 1983 does not create a remedy against a federal agency, see District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973), so Osher must demonstrate that Congress intended “to create not just a private right but also a private remedy.” Sandoval, 532 U.S. at 286. The Act does not expressly create a private right of action; Osher rests on a theory that the Act does so impliedly.
Osher maintains that Tullock v. State Highway Commission, 507 F.2d 712 (8th Cir. 1974), recognized an implied right of action under the Act. Tullock concluded that the Act permitted “judicial review of claims relating to relocation assistance.” Id. at 715. After determining that the plaintiff was a “displaced person” eligible for relocation benefits, the court stayed eviction proceedings until the district court calculated the plaintiff‘s recovery under the Act. Id. at 717. According to Osher, Tullock thus stands for the proposition that the Act provides a private right of action to displaced persons.
Insofar as Tullock recognized a private cause of action under the Act, it has been superseded by intervening precedent. Tullock was decided in an era when it was deemed “the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose” expressed by a statute. See J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964). The Supreme Court, however, “abandoned that understanding in Cort v. Ash, 422 U.S. 66, 78 (1975),” decided the year after Tullock. Sandoval, 532 U.S. at 287. It is now clear that the proper focus is on congressional intent, and “nothing ‘short of an unambiguously conferred right‘” will support an implied right of action. Does v. Gillespie, 867 F.3d 1034, 1040 (8th Cir. 2017) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002)). It is insufficient to show merely that a particular statute “intend[ed] to benefit the putative plaintiff.” Id. at 1039 (alteration in original) (quoting Wilder v. Va. Hosp. Ass‘n, 496 U.S. 498, 509 (1990)). Tullock never addressed whether the Act unambiguously confers a private right or displays an intent to provide a private remedy.
Examining the relevant indicia of congressional intent, we conclude that Congress did not create a private cause of action to enforce the Act. The Act does not contain “rights-creating” language that is “phrased in terms of the persons benefited.” Gonzaga, 536 U.S. at 284 (quoting Cannon, 441 U.S. at 692 n.13). Rather, the statute “focus[es] on the person regulated rather than the individuals protected,” and thus “create[s] ‘no implication of an intent to confer rights on a particular class of persons.‘” Sandoval, 532 U.S. at 289 (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)).
Congress also provided for an administrative mechanism to enforce compliance with the Act. The existence of administrative procedures “counsel[s] against . . . finding a congressional intent to create individually enforceable private rights.” Id. at 290. The Act instructs the head of the Department of Transportation to “develop, publish, and issue . . . such regulations as may be necessary to carry out this chapter.”
Osher points to a statement in Norfolk Redevelopment & Housing Authority v. Chesapeake & Potomac Telephone Co. of Virginia, 464 U.S. 30 (1983), that displaced persons are “entitled to relocation benefits” under the Act. Id. at 32. But the only issue in Norfolk was the meaning of “displaced person.” Id. at 34 n.5. The Court did not address whether the Act created a private right or remedy, and it is neither binding nor persuasive authority on those questions.
Osher also contends that by stating expressly in
Osher‘s notice of appeal also encompassed the district court‘s order abstaining from the exercise of jurisdiction over his claim against the Redevelopment Authority. Osher‘s notice of appeal stated that he was appealing “from the final judgment entered in this matter on May 2, 2017,” and it brought up for review all of the previous rulings and orders that led to the judgment. See Rosillo v. Holten, 817 F.3d 595, 597 (8th Cir. 2016). In his opening brief, however, Osher did not advance a meaningful argument that the district court erred by abstaining under the Younger doctrine. The contention is therefore waived. White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Osher suggested at oral argument that he waived any challenge to abstention only on his claim for injunctive relief, while he adequately disputed the district court‘s decision to abstain from ruling on his claim for damages. We reject this dichotomy. The brief includes no argument about the abstention ruling in either context, and the point is waived.
* * *
The judgment of the district court is affirmed. The appellees’ motions to strike are denied.