Osher v. City of St. Louis

• Decision Date: 06 September 2018
• Docket Number: No. 17-2401,17-2401
• Citation: 903 F.3d 698
• Parties: 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.
• Court: U.S. Court of Appeals — Eighth Circuit

903 F.3d 698

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, Eighth Circuit.

Submitted: June 28, 2018

Filed: September 6, 2018

Counsel who presented argument on behalf of the appellant was John Andres Thornton, of Miami, FL. The following attorney(s) appeared on the appellant brief; Eric Erfan Vickers, of Saint Louis, MO.

Counsel who presented argument on behalf of the appellee and appeared on the brief of Land Clearance for Redevelopment Authority of St. Louis was Gerard T. Carmody, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief of Land Clearance for Redevelopment Authority of St. Louis; Christopher Powers Kellett, of Saint Louis, MO., Ryann Case Carmody, of Saint Louis, MO.

Counsel who presented argument on behalf of the appellee and appeared on the brief of National Geospatial-Intelligence Agency was Karin A Schute, AUSA, of Saint Louis, MO.

Before COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

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, 42 U.S.C. § 4622. The district court¹ abstained from deciding Osher’s claim against the Redevelopment Authority and dismissed his claim against the Agency. We conclude that the Act does not create a private right of action against the Agency, and that Osher waived any challenge to the court’s abstention decision, so we affirm.

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 included Osher’s property. The St. Louis Land Clearance for Redevelopment Authority began acquiring property within the proposed site. After notifying Osher of its intent to procure his property in December 2015, the Redevelopment Authority brought a condemnation action in state court.

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"), 42 U.S.C. § 4622, by failing to pay him the relocation benefits provided by the Act. Osher sought relief under 42 U.S.C. § 1983.

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 Redevelopment Authority petitioned for a writ of possession from the state court. By the time of the hearing in federal court, the state court had granted the writ of possession and ordered Osher to tender possession of the property to the Redevelopment Authority immediately.

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, 91 S.Ct. 746, 756, 760, 27 L.Ed.2d 669 (1971). The court dismissed Osher’s claim against the Agency on the grounds that § 1983 does not provide a remedy against a federal agency, and that the Act does not create a private right of action. Alternatively, the court concluded that Osher’s claim failed on the merits, because the Act did not apply to the underlying eminent domain proceedings.

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, 127 S.Ct. 2360, 168 L.Ed.2d 96 (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. Fed. R. App. P. 4(a)(1)(B) ; accord 28 U.S.C. § 2107(b). The district court’s order dismissing the action was filed December 29, 2016, more than 60 days before he filed the notice of appeal on June 16, 2017. But because Osher filed a timely motion for relief from the judgment under Rules 59 and 60, the time to file his appeal did not begin to run until the district court disposed of that motion on May 2, 2017. Fed. R. App. P. 4(a)(4)(A)(iv). Osher filed his notice of appeal within 60 days of May 2, so it is timely.

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." Fed. R. Civ. P. 58(a). If the separate document requirement is not satisfied, however, "then the order is deemed ‘entered’ 150 days after the dispositive order was entered on the civil docket." Jeffries , 721 F.3d at 1012 ; see Fed. R. Civ. P. 58(c)(2). The district court here entered its dismissal order on December 29, 2016, but never set out the judgment in a separate document. The judgment was therefore deemed entered on May 28, 2017. Osher filed his notice of appeal within 60 days of May 28, so his appeal is timely for that reason as well.

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 ....

42 U.S.C. § 4622(a)(1), (3). Osher contends that this provision entitles him to receive relocation benefits and gives him a cause of action to obtain them.

"[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, 99 S.Ct. 1946, 60 L.Ed.2d 560 (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, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Section 1983 does not create a remedy against a federal agency, see District of Columbia v. Carter , 409 U.S. 418, 424-25, 93 S.Ct. 602, 34 L.Ed.2d 613 (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, 121 S.Ct. 1511. 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, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). The Supreme Court, however, "abandoned that understanding in Cort v. Ash , 422 U.S. 66, 78 [95 S.Ct. 2080, 45 L.Ed.2d 26] (1975)," decided the year after Tullock . Sandoval , 532 U.S. at 287, 121 S.Ct. 1511. 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, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) ). It is insufficient to show merely that a particular statute "intend[ed] to benefit...