Lewis v. Brinegar
| Citation | 372 F. Supp. 424 |
| Decision Date | 20 March 1974 |
| Docket Number | No. 73 CV 201-W-2.,73 CV 201-W-2. |
| Parties | Delores LEWIS, Plaintiff, v. Claude S. BRINEGAR, Secretary of Department of Transportation, and Missouri State Highway Commission, Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Michael J. Thompson, of the Legal Aid and Defender Society of Greater Kansas City, Kansas City, Mo., for plaintiff.
Vernon A. Poschel, Asst. U. S. Atty., Kansas City, Mo., Earl H. Schrader, Jr., and James R. Sandifar, Kansas City Mo., Asst. Counsel for Mo. State Highway Commission, for defendants.
MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This action is before the Court on motions for summary judgment filed by all the parties. Since there are no material facts in dispute, the action is in a posture for disposition on the pending motions.1 Defendants' motions for summary judgment will be granted.
This action concerns the relocation assistance provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (the Act), 42 U.S.C. §§ 4601-4655 (1970). A brief discussion of the Act and the federal and state regulations promulgated to implement the Act is necessary. Section 4622 of the Act provides for relocation benefits, including moving expense and dislocation allowances:
Section 4601(6) of the Act defines "displaced person":
The moving expense and dislocation allowances provisions of subsection 4622(b) are made applicable to federally assisted state projects by section 4630 of the Act. Subsection 4633(c) authorizes agency heads to prescribe regulations necessary or appropriate to carry out the Act.
Pursuant to the authority granted by subsection 4633(c), the Secretary of Transportation (Secretary) promulgated 49 C.F.R. § 25.11 (1973) establishing eligibility requirements for section 4622 relocation benefits. Subsection 25.11(d) provides the eligibility requirement which is the subject of this action:2
A person, other than the former owner or tenant, who enters into rental occupancy of real property after its ownership passes to the agency concerned, does not qualify as a displaced person for the purposes of this part.
The Secretary implemented subsection 4622(b) of the Act by providing for moving expense and dislocation allowances in 49 C.F.R. § 25.155 (1973) for displaced persons. 49 C.F.R. § 25.57(a)(1) (1973) requires that federally assisted state projects comply with section 25.155, inter alia. In addition, the Secretary delegated his regulatory authority under subsection 4633(c) to various federal agencies and administrations, including the Federal Highway Administration (FHWA). 49 C.F.R. §§ 25.7 and 25.9 (1973).
Pursuant to this authority, the FHWA issued Instructional Memorandum 80-1-71 (Memorandum) on April 30, 1971.3 Paragraph 4(c) of the Memorandum defines "displaced person":
Paragraph 4(d) defines "initiation of negotiations":
The term "initiation of negotiations" for a parcel means the date the acquiring agency makes the first personal contact with the owner of the parcel or property to be acquired for a Federal or Federal-aid project or his designated representative where price is discussed.
Paragraph 17(a) carries forward the ¶ 4(c) definition of "displaced person" with regard to moving expense payments allowable under subsection 4622(a) of the Act and 49 C.F.R. §§ 25.11 to -.133 (1973):
Paragraph 18 implements the moving expense and dislocation allowances allowable under subsection 4622(b) of the Act and 49 C.F.R. §§ 25.151 to -.161 (1973). Paragraph 18 provides that a displaced person eligible under paragraph 17(a)(1) of the Memorandum is eligible for the moving expense and dislocation allowances. In short, "occupancy at the initiation of negotiations" is a critical qualification requirement for subsection 4622(b) moving expense and dislocation allowances.
The FHWA's Memorandum was implemented by the Missouri State Highway Commission (Commission) in its Relocation Handbook, Chapter VII: Relocation Assistance Program (Handbook). Section 8-1.3 of the Handbook provides:
This definition is applied in section 8-8 of the Handbook which implements subsection 4622(b) of the Act, 49 C.F.R. §§ 25.151 to -.161 (1973), and Memorandum ¶ 18. In short, in order to qualify for subsection 4622(b) moving expense and dislocation allowances in a federally assisted Commission project, one must have been "in occupancy at the initiation of negotiations." This requirement, which runs throughout the entire federal and state regulatory scheme, is challenged by plaintiff's action.
The material facts have been admitted. In 1971, the Commission was involved in the purchase of real property in Kansas City, Missouri, in connection with construction of a primary Federal-Aid highway project known as the South-Midtown Freeway, Project QU-71-4 15(RA). On August 3, 1971, the Commission commenced negotiations for the purchase of the property located at 3011 Euclid. The property was conveyed to the State of Missouri through the Commission by a warranty deed executed August 4, 1971. The deed was recorded October 8, 1971. Acquisition of the property was financed by the Commission and the FHWA. On September 8, 1971, plaintiff and her family moved into the dwelling at 3011 Euclid with knowledge that the property had been or would be conveyed to the Commission.4 On January 28, 1972, the Commission served plaintiff with a notice to vacate the dwelling.
If eligible for subsection 4622(b) allowances, plaintiff would be entitled to a moving expense allowance of $300 and a dislocation allowance of $200. On August 28, 1972, plaintiff filed a claim for subsection 4622(b) allowances with the Commission. The claim was rejected on September 19 because plaintiff had entered into occupancy of the dwelling at 3011 Euclid after negotiations had begun. Plaintiff appealed. Following a hearing, the Commission's Appeal Board issued a final order February 5, 1973, sustaining the denial of subsection 4622(b) allowances.
Plaintiff contends that 49 C.F.R. § 25.11(d) (1973) and the conforming FHWA and Commission regulations contravene subsections 4601(6) and 4622(b) of the Act. Before addressing this contention, the Court will consider the jurisdictional questions raised by the defendants.
The Secretary suggests that the Court lacks jurisdiction to review the promulgation of 49 C.F.R. § 25.11(d) (1973). This suggestion is erroneous. It is now settled that federal courts may review final federal agency action under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (1970), unless review is precluded by statute or the agency action is committed to agency discretion by law, 5 U.S.C. § 701(a)(1) and (2) (1970). Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Indeed, this Court has already expressed its opinion by way of dictum that federal agency action under title II of the Act, 42 U.S.C. §§ 4621-4638 (1970), is subject to review under the APA. Barnhart v. Brinegar, 362 F.Supp. 464, 471 (W.D.Mo.1973). We now so hold. See Hanley v. Volpe, 305 F.Supp. 977, 980 (E.D.Wis.1969). Since review is not precluded by statute and the agency action in question is not committed to agency discretion, the Court has jurisdiction to review the Secretary's action in promulgating 49 C.F.R. § 25.11(d) (1973).
The Commission also questions the Court's jurisdiction, suggesting that the Court lacks jurisdiction to review the Commission's issuance of Handbook §§ 8-1.3(c) and 8-8. First, the Commission claims sovereign immunity. This claim is ill-founded. Mo.Rev.Stat. § 226.100 (1969) provides that the Commission "may sue and be sued." This constitutes a "continuing waiver of sovereign immunity." V. S. DiCarlo Const. Co. v. State of Missouri, 485 S.W.2d 52, 56 (Mo.1972). The Commission has...
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... ... Co. v. Craton, 405 F.2d 41, 48 (5th Cir. 1968); Lewis v. Brinegar, 372 F.Supp. 424, 428-29 (W.D.Mo.1974) (federal question claim against pendent party for less than jurisdictional amount). But cf. Hymer ... ...
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