Delancey v. City of Austin

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 3, 2009

No. 08-50934 Charles R. Fulbruge III

Clerk

CURTIS L. DELANCEY; MARIAN D. DELANCEY

Plaintiffs-Appellants

v.

CITY OF AUSTIN

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:07-CV-813

Before WIENER, DENNIS, and CLEMENT, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Plaintiffs-Appellants Curtis L. Delancey and Marian D. Delancey

(“Plaintiffs”) sued Defendant-Appellee the City of Austin (“the City”) seeking

monetary damages under the Uniform Relocation Assistance and Real Property

Acquisition Policy Act (“URA”), 42 U.S.C. § 4601 et seq. The district court

granted summary judgment in favor of the City, holding that the URA does not

provide a private right of action for monetary damages. We AFFIRM for

essentially the reasons stated by the district court.

No. 08-50934

FACTUAL AND PROCEDURAL HISTORY

Plaintiffs owned a parcel of land located at 5106 General Aviation Avenue

in Austin, Texas (“the Property”); the Property is adjacent to the Austin

Bergstrom International Airport. Plaintiffs operated an automobile salvage yard

business and a wrecker service business on the Property.

On January 14, 2007, Plaintiffs executed a warranty deed transferring the

Property to the City in exchange for $600,000 plus relocation benefits. At the

January 14 closing, Plaintiffs and the City also executed a non-resident rental

agreement for the Plaintiffs’ continued short-term occupancy of the Property.

On the same day, the City provided Plaintiffs written notice to vacate the

Property within 90 days.1

Plaintiffs purchased another parcel of land from which they could operate

their wrecker business but which, due to a lack of space, was unsuitable for

operating their automobile salvage business. Thus, Plaintiffs continued to store

250 non-operable vehicles on the Property.

In a letter dated August 29, 2007, the City gave Plaintiffs notice to vacate

the Property by September 28, 2007. Plaintiffs then initiated the instant suit,

seeking monetary damages under the URA, 42 U.S.C. § 4601 et seq., on the

grounds that the City had not fulfilled its obligation to provide relocation

assistance under the URA; Plaintiffs also asserted a claim under 42 U.S.C. §

1983, arguing that the City, through the actions of its employee Melinda Ruby,

had deprived Plaintiffs of their URA rights. Additionally, Plaintiffs sought a

preliminary injunction to prevent the City from requiring Plaintiffs to vacate the

Property.

1

The City subsequently extended this 90 day period.

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After conducting an evidentiary hearing, the district court denied

Plaintiffs’ motion for a preliminary injunction.2 The City then filed a motion for

summary judgment, which the district court granted on the grounds that (1) the

URA does not provide a private right of action for monetary damages, and (2)

Ms. Ruby, whose actions form the apparent basis of Plaintiffs’ § 1983 claim, does

not qualify as a policymaker for the City. Based on this grant of summary

judgment, the district court entered final judgment dismissing Plaintiffs’ claims

with prejudice, and Plaintiffs timely appealed.

DISCUSSION

Applying the analysis announced by the Supreme Court in Gonzaga

University v. Doe, 536 U.S. 273, 280 (2002), we hold that the URA does not

provide a private right of action for monetary damages, and accordingly we

affirm the district court’s grant of summary judgment in favor of the City.3

2

Plaintiffs do not appeal the denial of injunctive relief.

3

We also affirm the grant of summary judgment on Plaintiffs’ § 1983 claim. The

district court correctly concluded that Plaintiffs’ § 1983 claim against the City must fail as a

matter of law because Plaintiffs cannot establish that Ms. Ruby is a policymaker for the City.

It has been long established that “a municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978). “Instead,

it is when execution of a government’s policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that

the government as an entity is responsible under § 1983.” Id. at 694. The district court

concluded that Ms. Ruby’s actions could not represent the official policy of the City because

the City of Austin Charter vests all policymaking authority with the City Council, see City of

Austin Charter Art. 1 § 2 (“all powers of the city shall be vested in and exercised by an elective

council, hereinafter referred to as ‘the council,’ which shall enact legislation, adopt budgets,

determine policies, and appoint the city manager who shall execute the laws and administer

the government of the city”), and because Plaintiffs produced no evidence that the City of

Austin expressly or impliedly acknowledged that Ms. Ruby acted as a policymaker, see Webster

v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc); cf. Flores v. Cameron County,

92 F.3d 258, 269 (5th Cir. 1996) (“[t]he Supreme Court has precluded the possibility of finding

a county employee to possess ‘de facto policymaking authority’”) (citing City of St. Louis v.

Praprotnik, 485 U.S. 112, 131 (1988)). For these same reasons, we affirm the district court’s

grant of summary judgment.

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“[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.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979) (quoting

Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979)). Rather, “[i]n legislation

enacted pursuant to the spending power, the typical remedy for state

noncompliance with federally imposed conditions is not a private cause of action

for noncompliance but rather action by the Federal Government to terminate

funds to the State.” Gonzaga, 536 U.S. at 280 (quoting Pennhurst State Sch. &

Hosp. v. Halderman, 451 U.S. 1, 28 (1981)). In enacting a federal statute,

Congress may choose to confer individual rights subject to private enforcement,

but to do so the statute must “speak with a clear voice” and “unambiguous[ly]”

confer those rights. Gonzaga, 536 U.S. at 280. Thus, “the question whether a

statute creates a cause of action, either expressly or by implication, is basically

a matter of statutory construction,” Transamerica Mortgage Advisors Inc. v.

Lewis, 444 U.S 11, 15 (1979), and “the judicial task is to interpret the statute

Congress has passed to determine whether it displays an intent to create not just

a private right but also a private remedy.” Alexander v. Sandoval, 532 U.S. 275,

286 (2001).

Here, Plaintiffs contend that the URA creates an implied private right of

action.4 In Gonzaga, the Supreme Court discussed the test for determining

whether a statute implies a private right of action, stating that “for Congress to

create new rights enforceable under an implied private right of action” it must

do so in “clear and unambiguous terms.” 536 U.S. at 290;5 see also Equal Access

4

Plaintiffs do not dispute that the text of the URA conveys no express private right of

action.

5

Though the precise issue in Gonzaga was whether a statute created rights enforceable

via a § 1983 action, the Court noted that “[a] court’s role in discerning whether personal rights

exist in the § 1983 context should [] not differ from its role in discerning whether personal

rights exist in the implied right of action context. Both inquiries simply require a

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for El Paso, Inc. v. Hawkins, 509 F.3d 697, 702-03 (5th Cir. 2007) (“[T]he

Supreme Court in Gonzaga expressly rejected ‘the notion that our cases permit

anything short of an unambiguously conferred right to support a cause of action

brought under § 1983.’” (quoting Gonzaga, 536 U.S. at 283)). Further, in

Gonzaga the Court set forth factors that indicate Congressional intent to create

individual rights enforceable through private rights of action, explaining that

“for a statute to create such private rights, its text must be phrased in terms of

the persons benefitted.” Gonzaga, 536 U.S. at 284 (internal quotations omitted);

see also Equal Access for El Paso, 509 F.3d at 702 (“[A] claim based on a

statutory violation is enforceable under § 1983 only when the statute creates

‘rights, privileges, or immunities’ in the particular plaintiff.” (quoting Gonzaga,

536 U.S. at 285)). As examples of statutes phrased to create enforceable

individual rights, the Court cited Title VI of the Civil Rights Act of 1964 and

Title IX of the Education Amendments of 1972,6 which contain “an unmistakable

focus on the benefitted class.” Gonzaga, 536 U.S. at 284 (internal quotations

omitted). Conversely, the Court has also noted that “statutes that focus on the

person regulated rather than the individuals protected create ‘no implication of

an intent to confer rights on a particular class of persons.’” Alexander, 532 U.S.

at 289 (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)).

determination as to whether or not Congress intended to confer individual rights upon a class

of beneficiaries.” Gonzaga, 536 U.S. at 285 (internal citations omitted).

6

Title VI provides: “No person in the United States shall .

. . be subjected to discrimination under any program or activity

receiving Federal financial assistance” on the basis of race, color,

or national origin. Title IX provides: “No person in the United

States shall, on the basis of sex, ... be subjected to discrimination

under any education program or activity receiving Federal

financial assistance.” Where a statute does not include this sort

of explicit “right- or duty-creating language,” we rarely impute to

Congress an intent to create a private right of action.

Gonzaga, 536 U.S. at 284 n.3 (internal citations omitted).

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Applying these factors in Gonzaga, the Court held that the statute under

consideration, a provision of the Family Educational Rights and Privacy Act of

1974, 20 U.S.C. § 1232g (“FERPA”), failed to confer enforceable rights because

it lacked critical rights-creating language and instead merely directed the

Secretary of Education in institutional policy and practice. See Gonzaga, 536

U.S. at 287-88; see also Equal Access for El Paso, 509 F.3d at 702-03.

The URA provision at issue in the instant case is similar, in respect to lack

of rights-creating indicia, to the FERPA provision in Gonzaga, and for many of

the same reasons discussed in Gonzaga, we hold that the URA does not create

a private right of action for money damages. The relevant URA provisions,

which Plaintiffs contend create a private right of action in this case, read as

follows:

(b) Availability of advisory services

The head of any displacing agency shall ensure that the relocation

assistance advisory services described in subsection (c) of this

section are made available to all persons displaced by such agency.

If such agency head determines that any person occupying property

immediately adjacent to the property where the displacing activity

occurs is caused substantial economic injury as a result thereof, the

agency head may make available to such person such advisory

services.

(c) Measures, facilities, or services; description

Each relocation assistance advisory program required by subsection

(b) of this section shall include such measures, facilities, or services

as may be necessary or appropriate in order to–

(1) determine, and make timely recommendations on, the

needs and preferences, if any, of displaced persons for relocation

assistance;

(2) provide current and continuing information on the

availability, sales prices, and rental charges of comparable

replacement dwellings for displaced homeowners and tenants and

suitable locations for businesses and farm operations;

....

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No. 08-50934

(4) assist a person displaced from a business or farm operation

in obtaining and becoming established in a suitable replacement

location;

(5) supply (A) information concerning other Federal and State

programs which may be of assistance to displaced persons, and (B)

technical assistance to such persons in applying for assistance under

such programs; and

(6) provide other advisory services to displaced persons in

order to minimize hardships to such persons in adjusting to

relocation.

42 U.S.C. § 4625(b)-(c). Like the FERPA provision addressed in Gonzaga, the

statutory provisions above are directed at the “head of any displacing agency”

rather than at the individuals benefitted by the statute. See Gonzaga, 536 U.S.

at 287; Alexander, 532 U.S. at 289 (“Statutes that focus on the person regulated

rather than the individuals protected create ‘no implication of an intent to confer

rights on a particular class of persons.’”). Further, the URA does not contain

rights-creating language like that in Titles VI and IX. Instead it prescribes a

policy and practice for administering relocation assistance. See 42 U.S.C. §

4625(b) (“The head of any displacing agency shall ensure that the relocation

assistance advisory services described in subsection (c) of this section are made

available to all persons displaced by such agency”); 42 U.S.C. § 4625(c) (“Each

relocation assistance advisory program required by subsection (b) of this section

shall include such measures, facilities, or services as may be necessary or

appropriate . . . .” ); see also 42 U.S.C. § 4621(b) (“This subchapter [of the URA]

establishes a uniform policy for the fair and equitable treatment of persons

displaced as a direct result of programs or projects undertaken by a Federal

agency or with Federal financial assistance.”) (emphasis added). The Supreme

Court found similar “policy or practice” language insufficient to create an

individual right of action in Gonzaga, 536 U.S. at 287-88. See also Equal Access

for El Paso, 509 F.3d at 703 (“[A] statutory provision fails to confer enforceable

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No. 08-50934

rights when it entirely lack[s] the sort of rights-creating language critical to

showing the requisite Congressional intent to create new rights; when it speak[s]

only in terms of institutional policy and practice, not individual concerns; and

when it has an aggregate focus [and is] not concerned with whether the needs

of any particular person have been satisfied.” (internal quotations and citations

omitted)). Thus, the URA provision here does not evidence Congressional intent

to create a private right of action for money damages.7 Accordingly, we AFFIRM

the district court’s grant of summary judgment in favor of the City.

7

Plaintiffs argue that other circuits have recognized private rights of action under the

URA in Pou Pacheco v. Aquino, 833 F.2d 392, 398–400 (1st Cir. 1987) and Tullock v. State

Highway Commission, 507 F.2d 712, 715–17 (8th Cir. 1974). However, this argument,

premised on cases that predate and conflict with Gonzaga, is unpersuasive. Cf. Equal Access

for El Paso, 509 F.3d at 704 (rejecting, as inconsistent with Gonzaga, a prior circuit precedent

permitting § 1983 suits to enforce the Equal Access provision of the Medicaid Act, 42 U.S.C.

§ 1396a). Moreover, neither Pou Pacheco, 833 F.2d at 396-400, which affirmed the

reimbursement of certain expenses under the URA, nor Tullock, 507 F.2d at 716-17, which

held that a regulation limiting reimbursements was inconsistent with the URA, are analogous

to the instant suit in which Plaintiffs seek monetary damages for alleged URA violations.

Plaintiffs have presented no post-Gonzaga authority, either from this circuit or elsewhere, to

support a private right of action for such damages under the URA. See Alexander, 532 U.S.

at 286 (noting that there must be “an intent to create not just a private right but also a private

remedy”).

8