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.
2
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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.
3
No. 08-50934
“[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
4
No. 08-50934
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