American Premier Underwriters, Inc. v. National Railroad Passenger Corp.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0060p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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AMERICAN PREMIER UNDERWRITERS, INC.;
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AMERICAN FINANCIAL GROUP, INC.,
Plaintiffs-Appellants, -
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No. 11-4054

,
>
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v.

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NATIONAL RAILROAD PASSENGER
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CORPORATION, aka Amtrak,
Defendant-Appellee. N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:08-cv-346—S. Arthur Spiegel, District Judge.
Argued: October 5, 2012
Decided and Filed: March 5, 2013
Before: COLE and KETHLEDGE, Circuit Judges; THAPAR, District Judge.*

_________________

COUNSEL
ARGUED: Michael L. Cioffi, BLANK ROME LLP, Cincinnati, Ohio, for Appellants.
Pierre H. Bergeron, SQUIRE SANDERS (US) LLP, Cincinnati, Ohio, for Appellee.
ON BRIEF: Michael L. Cioffi, Thomas H. Stewart, BLANK ROME LLP, Cincinnati,
Ohio, for Appellants. Pierre H. Bergeron, Rachael A. Harris, SQUIRE SANDERS (US)
LLP, Cincinnati, Ohio, for Appellee.
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OPINION
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COLE, Circuit Judge. Plaintiffs-Appellants American Premier Underwriters, Inc.
and American Financial Group, Inc. (collectively “APU”) appeal the district court’s

*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

1
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 2

dismissal of five of its claims against Defendant-Appellee National Railroad Passenger
Corporation (“Amtrak”). For the following reasons, we reverse in part and affirm in
part.

I.

Congress enacted the Rail Passenger Service Act of 1970 (“RPSA”) to “avert the
threatened extinction of passenger trains in the United States,” Lebron v. Nat’l R.R.
Passenger Corp., 513 U.S. 374, 383 (1995), by creating a “rail passenger corporation
for the purpose of providing modern, efficient, intercity rail passenger service,” known
today as “Amtrak.” Pub. L. No. 91-518, § 101, 84 Stat. 1327, 1328 (1970). Struggling
railroads could, under the RPSA, be excused from providing intercity rail passenger
service by entering into a contract with Amtrak. See id. § 401.

In April of 1971, after filing for bankruptcy the prior year, the trustees of the
Penn Central Transportation Company (“PCTC”), now American Premier Underwriters,
Inc., decided to take advantage of § 401 of the RPSA. PCTC contracted under the
“Basic Agreement” to (1) pay Amtrak half of the amount of PCTC’s 1969 losses ($52
million); and (2) provide Amtrak with the use of its tracks, facilities and services. In
return, Amtrak was to, among other things, (1) relieve PCTC of its “entire
responsibility” for the provision of intercity rail passenger service; and (2) issue to
PCTC one share of common stock for every ten dollars paid by PCTC to Amtrak, i.e.,
approximately 5.2 million shares.

PCTC elected to receive the stock shares instead of a tax deduction for the
$52 million amount. See RPSA §§ 401(a)(2), 901. The $52 million payment was
described as “in consideration of” Amtrak’s relieving PCTC of rail service
responsibility. The stock issue was not described this way; the agreement merely said
that it would take place “promptly after” the $52 million payment.

In 1978, as part of PCTC’s reorganization, PCTC and Amtrak entered into the
“1978 Settlement Agreement,” whereby they agreed to release all then-existing claims
against each other, as well as all claims arising from events prior to March 31, 1976.
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 3

In 1997, Congress enacted the Amtrak Reform and Accountability Act of 1997
(“1997 Act”), seeking to “improve Amtrak’s financial condition” and ensure its survival
by providing it with “additional flexibility” to “operate in a businesslike manner . . . to
manage costs and maximize revenues.” Pub. L. No. 105-134, § 2, 111 Stat. 2570 (1997).
Section 415(b) of the 1997 Act, titled “Redemption of Common Stock,” said: “Amtrak
shall, before October 1, 2002, redeem all common stock previously issued, for the fair
market value of such stock.” Id. § 415(b).

A full decade after the deadline, Amtrak has redeemed none of APU’s stock, and
each party blames the other. In 2000, APU rejected Amtrak’s redemption offer of
$0.03 per share. The two negotiated until January 2008, when Amtrak allegedly refused
to consider any alternative transaction to redeem the stock, such as an exchange of assets
instead of cash. APU filed its complaint on May 19, 2008.

In their original complaint, American Premier Underwriters, Inc. and its parent
American Financial Group (the beneficial owner of APU’s Amtrak stock) made seven
claims: (1) Amtrak caused the value of its stock to erode and thereby effected a taking
without just compensation of APU’s shares in violation of the Takings Clause of the
Fifth Amendment (“takings claim”); (2) APU is entitled to restitution of the $52 million
payment under state law; (3) Amtrak converted APU’s shares when it failed to redeem
them; (4) Amtrak’s “irrational” valuation of APU’s shares deprived APU of a protected
property interest in violation of the Due Process Clause of the Fifth Amendment (“due
process claim”); (5) Amtrak’s valuation denied APU procedural due process because the
self-interested Amtrak was the sole fact-finder, the valuation was arbitrary and APU was
denied notice and an opportunity to be heard in the valuation process (“procedural due
process claim”); (6) Amtrak’s valuation denied APU substantive due process by valuing
the stock at the “unfair” amount of $0.03 per share (“substantive due process claim”);
and (7) Amtrak failed to comply with its obligations under § 415(b) and APU has a valid
statutory private right of action as a result (“ARAA claim”).

APU sought monetary damages in all of these claims, except for the due process
claim, in which APU sought a declaratory judgment that Amtrak’s implementation of
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 4

§ 415(b) violated constitutional due process, along with commencement of eminent
domain proceedings for the redemption of the shares.

The district court granted Amtrak’s motion to dismiss, finding that APU failed
to state a single valid claim. It dismissed the second and third claims on state law
grounds. The district court found that Amtrak “qualifie[d] as an agency for the purpose
of seeking redress of constitutional violations,” which led it to dismiss the first, fifth and
sixth claims on the grounds that federal agencies cannot be sued for monetary damages
for their constitutional violations. The district court then found that § 415(b) did not
create a private right of action for Amtrak shareholders, like APU, to sue for redemption.
As a result, the district court dismissed the fourth and seventh claims.

Though it did not need to reach the issue, the district court held that, if any of
APU’s claims had been viable, it would not have dismissed them under either a statute
of limitations or the 1978 Settlement Agreement because further factual inquiry would
have been required.

II.

APU appeals the district court’s grant of Amtrak’s motion to dismiss as to the
five federal law claims. We review the district court’s decision to dismiss the complaint
de novo, to determine whether the facts pleaded in the complaint are sufficient to state
a plausible claim. See Mediacom Se. LLC v. BellSouth Telcomms., Inc., 672 F.3d 396,
398, 400 (6th Cir. 2012).

A.

The district court did not err in dismissing APU’s takings claim, procedural due
process claim, and substantive due process claim. Even in the absence of sovereign
immunity, a federal agency cannot be sued under an implied cause of action for
monetary damages that stem from the agency’s constitutional violations. FDIC v. Meyer,
510 U.S. 471, 486 (1994). Like the district court, we read Lebron v. National Railroad
Passenger Corp., 513 U.S. 374 (1995) to mean Amtrak is a federal agency for the
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 5

purpose of seeking redress of constitutional violations, and, accordingly, that Meyer bars
these three claims.

In Lebron, Michael A. Lebron sued Amtrak for violating his First Amendment
rights by refusing to display his billboard advertisement for political reasons. Id. at 376-
77. The district court entered judgment for Lebron, ordering Amtrak to display his
advertisement for two months. Lebron v. Nat’l R.R. Passenger Corp. (Amtrak), 811 F.
Supp. 993, 1005 (S.D.N.Y. 1993), rev’d, 12 F.3d 388 (2d Cir. 1993), rev’d, 513 U.S. 374
(1995). The Second Circuit reversed and remanded, holding that Amtrak could not be
held liable because it was “not a governmental actor subject to . . . the First
Amendment,” 12 F.3d 388, 389 (2d Cir. 1993), rev’d, 513 U.S. 374 (1995), and
instructing the district court to dismiss the suit, see id. at 393. On appeal to the Supreme
Court, Amtrak denied being a government entity, pointing to the disclaimer of agency
status in its authorizing statute. Lebron, 513 U.S. at 392 (citation omitted). The
Supreme Court held that agency status was not “within the power of Congress to
eliminate.” Id. at 394. Although the disclaimer sufficed to strip Amtrak of sovereign
immunity, id. at 392 (citation omitted), the Supreme Court held that Amtrak was “an
agency or instrumentality of the United States for the purpose of individual rights
guaranteed against the Government by the Constitution.” Id. at 394. Effectively,
Amtrak’s agency status served as the hook for its liability.

In FDIC v. Meyer, 510 U.S. 471 (1994), the Supreme Court held that a federal
agency could not be sued under an implied cause of action for monetary damages
stemming from a constitutional violation. Id. at 486. After his discharge, John Meyer
sued the agency for depriving him of a property right without due process of law in
violation of the Fifth Amendment. See id. at 473-74. Meyer framed his suit as a Bivens
challenge, i.e., an implied cause of action for damages from a constitutional violation by
the FDIC. See id. at 474 (explaining that Bivens had “implied a cause of action for
damages against federal agents who allegedly violated the Fourth Amendment”); see
also Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The Court held
that a statute waived the FDIC’s sovereign immunity, Meyer, 510 U.S. at 483, but did
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 6

not permit the suit because it refused to “imply a damages action directly against federal
agencies,” leading to the conclusion that federal agencies can only be sued for monetary
damages pursuant to an express statutory cause of action. See id. at 485-86; id. at 486
n.11. In Meyer, the FDIC’s agency status precluded the action against it.

APU propounds an improbable interpretation of Lebron that would saddle
Amtrak with all the obligations of a federal agency without any of the concomitant
advantages. APU argues that Lebron makes Amtrak enough of a government agency to
be sued for violating the First Amendment, but not enough of a government agency for
Meyer to apply and bar constitutional suits for monetary damages. Amtrak responds by
pointing out that only equitable relief was at issue in Lebron and no monetary damages
were sought, such that Lebron was entirely compatible with Amtrak being considered
a government agency for purposes of Meyer.

APU makes several arguments for why Meyer does not apply, all of which can
be characterized as attempts to limit the holding in Meyer. APU argues that Meyer
applies only (1) to vicarious liability claims; (2) where a direct action is unavailable;
(3) where agency behavior is systematically wrongful in a manner that is not attributable
to one or more individual bad actors; and (4) where there is danger of “greatly expanding
the federal government’s exposure to claims for monetary damages.”

APU’s first argument fails. When Meyer speaks of declining to “exten[d]
. . . Bivens to agencies,” id. at 486, it makes no distinction between vicarious and direct
liability. Meyer describes the plaintiff as requesting to “expand the category of
defendants,” implying that a refusal to do so keeps agencies from being defendants in
any kind of damages action for constitutional violations. See id. at 484.

APU’s second argument hinges on its overbroad reading of Lebron. APU argues
that Meyer only refused to extend Bivens actions to agencies against whom direct action
was unavailable, but Amtrak is not such an agency because, under Lebron, direct action
was permitted against Amtrak. Therefore, argues APU, Meyer does not apply to this
case. However, the Bivens remedy was implied in part because a direct action for
damages was not available. See Bivens, 403 U.S. at 409-10 (Harlan, J., concurring).
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 7

Lebron only proves that direct action for injunctive relief is available against Amtrak;
it is silent on the matter of damages. The availability of direct action for injunctive relief
does not necessarily imply the availability of a direct action for damages. See, e.g. Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (refusing to extend Bivens to private
corporation acting under color of federal law because plaintiffs could sue for injunctive
relief). Therefore, Lebron does not preclude the applicability of Meyer to the instant
case.

APU’s third and fourth arguments against applying Meyer not only lack
supporting authority, but also are in tension with each other. While it is true that this
case does not involve misconduct by a few individual bad actors in need of individual
deterrence, see Meyer, 510 U.S. at 485, APU cites no case law where the presence of
systematic, institutionally condoned federal agency misbehavior permits direct suit
against agencies for damages for constitutional violations. Holding categorically that
Meyer does not apply in such cases would almost certainly open the “floodgates” for
claims against federal agencies that APU’s fourth argument claims will not open if a
direct action for damages is permitted in this case. Even assuming, for the sake of
argument, that APU’s projections are correct, this proves, at most, the absence of one
“special factor[] counseling hesitation” to imply a right of action. See Bivens, 403 U.S.
at 396.

APU cites no case law suggesting that an expectation of few future claims
affirmatively militates in favor of extending Bivens. Its suggestion that this Court
“limit[] its holding to the unique facts and circumstances of this case,” amounts to a tacit
admission that existing case law fails to support its position. We see no reason to go out
on a limb to narrow the holding of Meyer in a manner that would “expand the category
of potential defendants against whom Bivens-type actions may be brought,” Meyer,
510 U.S. at 484, regardless of whether a flood or a mere trickle of new lawsuits results.

Even with a statutory waiver of sovereign immunity, Amtrak, like the FDIC,
cannot be sued for its constitutional violations under an implied right of action.
Congress cannot strip an agency of its status. See Lebron, 513 U.S. at 392-93 (“[I]t is
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 8

not for Congress to make the final determination of Amtrak’s status as a Government
entity . . . . That the Congress chose to call it a corporation does not alter its
characteristics . . . .” (quotation omitted)); id. at 397-98 (enumerating the characteristics
of Amtrak that make it like an agency). The limitation on suing federal agencies for
damages in constitutional rights violation cases is not related to immunity, but is merely
the absence of an implied cause of action. That is why the FDIC, which had waived
sovereign immunity, could not be sued in Meyer. See 510 U.S. at 484. Likewise,
Amtrak—which lacks sovereign immunity—possesses the status of a “Government
entity” with regard to its constitutional rights violations, and therefore cannot be sued
for damages for such violations under Meyer.

Ultimately, APU cannot have it both ways. If Amtrak is merely a private
corporation carrying out a federal mandate, it cannot be sued for damages for
constitutional violations. Malesko, 534 U.S. at 74. If Amtrak is a federal agency for the
purpose of individual rights guaranteed against the government by the Constitution, then
it must be treated like a federal agency in suits for the violation of individual
constitutional rights. Therefore, Meyer applies and Amtrak cannot be sued for damages
for its constitutional violations. It is not for this Court to declare a new third category
of federal-private-agency-corporations to be “limited to the facts” of this “unique” case.

We agree with the district court that APU may not sue Amtrak for monetary
damages stemming from its alleged constitutional violations. APU’s takings claim,
procedural due process claim and substantive due process claim (all of which seek
monetary damages), are therefore not viable.

B.

The district court did not err in dismissing APU’s ARAA claim because § 415(b)
does not create a private right of action, either express or implied. See Alexander v.
Sandoval, 532 U.S. 275, 286 (2001) (“[P]rivate rights of action to enforce federal law
must be created by Congress.”).
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 9

We reject APU’s contention that the use of the word “shall” in § 415(b) expressly
creates a private right of action because “a legal obligation implies and presumes the
existence of a correlative right that can be enforced.” (emphasis added). See Alexander,
532 U.S. at 286 (“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.” (emphasis added) (citation omitted)). It is true that in the absence of a private
right of action, the performance of an obligation may be, as APU complains, “subject to
[the] whims” of the obligor. See Touche Ross & Co. v. Redington, 442 U.S. 560, 579
(1979) (“[E]ven if [the result reached sanctions injustice], the argument is made in the
wrong forum, for we are not at liberty to legislate. If there is to be a federal damages
remedy under these circumstances, Congress must provide it.”). Nonetheless, the
existence of an explicit obligation does not expressly create a right of action. However,
a right of action may still be implied from the statutory text. See Cort v. Ash, 422 U.S.
66 (1975).

To determine whether § 415(b) implies a right of action, we consider four factors,
with special emphasis on the second:

First, is the plaintiff one of the class for whose especial benefit the statute
was enacted . . . ? Second, is there any indication of legislative intent,
explicit or implicit, either to create such a remedy or to deny one? Third,
is it consistent with the underlying purposes of the legislative scheme to
imply such a remedy for the plaintiff? And finally, is the cause of action
one traditionally relegated to state law . . . ?

id. at 78 (internal quotation marks and citations omitted); Ellison v. Cocke Cnty., Tenn.,
63 F.3d 467, 470 (6th Cir. 1995) (explaining that the Supreme Court has “clarified
that. . . the focal point [of the analysis] is Congress’s intent in enacting the statute”
(quoting Thompson v. Thompson, 484 U.S. 174, 179 (1988)).

Amtrak shareholders are not a class for whose especial benefit Congress enacted
§ 415(b) of the 1997 Act. Like the district court, we reject APU’s contention that
§ 415(b) was enacted solely to benefit shareholders, not future lenders or the public. We
agree with the district court that Congress’s intent was “to create greater financing
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 10

options for Amtrak,” and that any benefit to shareholders was incidental. This
understanding is consistent with available evidence of legislative intent, see infra, and
the text of the statute as a whole, which does not mention shareholders. APU cites no
evidence of an especial concern, or any concern at all, for shareholders as a class.

The fact that only four shareholders existed at the time of enactment does not
change our analysis. We are not aware of, and APU does not provide, any authority that
supports an inverse correlation between the number of potential statutory beneficiaries
and the strength (or existence) of Congressional intent to provide said beneficiaries, as
a class, with an “especial benefit.” Thus, the first factor militates against finding an
implied right of action on behalf of APU.

As to the second, most important, Cort factor: APU argues (1) that the text of
§ 415(b) demonstrates congressional intent to create a private right of action; and, in the
alternative, (2) that there is no need to show congressional intent to create a private right
of action because a right without a remedy is unjust, Congress did not explicitly disclaim
such a right, and the legislative history and structure of the 1997 Act provide such a
right.

The cases cited by APU for the first proposition fail to support it. Cenzon-
Decarlo v. Mt. Sinai Hosp., No. 09 CV 3120(RJD), 2010 WL 169485, at *4 (E.D.N.Y.
Jan. 15, 2010), which APU cites to demonstrate that “shall” is “classic individual rights-
creating language . . . under which implied rights of action have been found,” actually
undermines APU’s claim in this case. The statute in that case, like § 415(b), “sp[oke]
to the . . . entity” being commanded—the employer—rather than to the employees who
benefitted from the command. Id. The court found that no implied right of action was
created on behalf of the benefitted employees, even though the statute—unlike
§ 415(b)—mentioned them in its text. See id. at *1-2 (the relevant statutory provisions
say, among other things, that “[n]o entity . . . may discriminate in the employment . . .
of any physician or other health care personnel”). In this case, where shareholders are
not even mentioned, the Cenzon-Decarlo court would surely also find no implied right
of action. APU also claims that Fox v. Johnson & Wimsatt, 127 F.2d 729, 734 (D.C. Cir.
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 11

1942), establishes stock redemption as a “traditional right” that “matures into an
enforceable right when the conditions specified materialize.” However, Fox deals with
contractual rights generated by the exercise of an option, see id. at 730-31, and has
nothing to do with teasing out an implied private right of action from a federal statutory
obligation.

APU’s alternative arguments also fail to persuade us that Congress intended a
private right of action to be implied from § 415(b). The argument that a right without
a remedy is unjust simply presumes, without proving, an intent to create a right. The fact
that Congress did not explicitly deny the possibility of the statute creating a private
remedy is not evidence of Congress’s intent to create one. See Bowling Green v. Martin
Land Dev. Co., Inc., 561 F.3d 556, 559-60 (6th Cir. 2009) (“[A]bsent congressional
intent to create a private remedy, . . . ‘courts may not create [a cause of action], no matter
. . . how compatible with the statute.’” (quoting Alexander, 532 U.S. at 287-88)).

APU’s final alternative argument is that the legislative history and structure of
the act demonstrate congressional intent to create a private right of action because the
1997 Act contains no alternative remedy. Although the Attorney General may sue
Amtrak to enforce the 1997 Act, shareholders may not compel him to do so. See
49 U.S.C. § 24103(a). APU claims that finding a private right of action here would be
“[i]n the language and spirit of Cannon [v. University of Chicago, 441 U.S. 677
(1979)],” but Cannon is easily distinguishable. Title IX of the Education Amendments
of 1972, the statute at issue in Cannon, was “patterned after” Title VI of the Civil Rights
Act of 1964, which had already been found to create a private remedy, and there was
evidence of legislative intent to have Title IX operate the same way. Id. at 697-98.
There is no such evidence of intent in this case. The absence of evidence and authority
to the contrary indicates that Congress did not intend § 415(b) to create a private right
of action on behalf of shareholders, and thus the second and most important Cort factor
weighs against creating such a right.

The parties do not dispute that, whatever else Congress may have intended, the
underlying purpose of the 1997 Act, as a whole, was to make Amtrak financially viable.
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 12

See also Future of Amtrak and Rail Passenger Service: Hearing before the Comm. on
House Transp. and Infrastructure, 107th Cong. 2 (2002) (statement of Frank R.
Goldstein, Partner, Sidley Austin Brown & Wood LLP, on behalf of now-plaintiff
American Financial Group, Inc.) (“The obvious intent of the [1997 Act] was to require
Amtrak to operate in a more efficient and business-like manner, so that it would be able
to function, either as a private or quasi-private company, with substantially less federal
government subsidization.”). APU argues that finding § 415(b) to imply a private right
of action would be consistent with this underlying purpose.

APU’s strongest argument is that timely redemption of the stock shares under
§ 415(b) is required to fulfill the 1997 Act’s purpose. Even Amtrak acknowledges that
redemption would “rid Amtrak of certain . . . financial encumbrances so that [it] could
position itself to seek and receive investor funds and other private financing.” However,
there is no reason to believe that redemption at a “fair” market value, as would be
enforceable under an implied private right of action, would serve this goal any better
than redemption at the “unfair” value of $0.03 per share that Amtrak offered.
Furthermore, to the extent that Amtrak’s dawdling frustrates Congress’s intent to free
up Amtrak to seek private financing, there is an exclusive public enforcement
mechanism in place to protect the Government’s interest in a timely redemption: 49
U.S.C. § 24103(a)(1), which provides that the Attorney General may bring a civil action
for equitable relief when Amtrak behaves inconsistently with its authorizing statute.

APU argues that implying a private right of action would “strengthen the
guidance [and governmental oversight] brought to bear on Amtrak,” but does not
acknowledge that the additional “guidance” generated by a private right of action could
easily be at cross-purposes with the underlying purpose of strengthening Amtrak (as
here, for example, where the shareholders presumably want Amtrak to redeem the shares
for as much as possible, while Amtrak would profit most by paying as little as possible).
APU implicitly acknowledges the divergent interests when it argues that, absent a
private right of action, it would be without remedy because the Attorney General “would
be likely unwilling to file litigation when only four shareholders are adversely affected
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 13

by Amtrak’s failure to comply with the Act’s mandate.” If the purpose of the 1997 Act
is to strengthen Amtrak, and Amtrak itself is not adversely affected by its
noncompliance, then how will a private right of action serve the 1997 Act’s “underlying
purpose?” It will not. Therefore, we find that a private right of action in § 415(b) would
not be consistent with the underlying purposes of the legislative scheme of the 1997 Act.

Neither Amtrak nor APU disputes the district court’s conclusion that “matters
concerning Amtrak . . . are not traditionally relegated to state law . . . .” This factor does
not weigh against APU.

Because three of the four Cort factors weigh against finding an implied private
right of action in this case, including the most important factor of congressional intent,
the district court did not err in finding that § 415(b) does not imply a private right of
action on behalf of shareholders.

C.

Having concluded that § 415(b) does not create an implied right of action, we
must still consider whether it creates a property interest protected by due process. U.S.
Const. amend. XIV; Bd. of Regents v. Roth, 408 U.S. 564, 569-70 & n.7 (1972)
(explaining that procedural due process entitles a person to a hearing before being
deprived of a property interest).

A right of action is a “species of property,” but not the only one. See Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428 (1982) (citing Mullane v. Cent. Hanover Bank
& Trust Co., 339 U.S. 306 (1950)). “[T]he types of interests protected as ‘property’ are
varied and, as often as not, intangible, relating ‘to the whole domain of social and
economic fact.’” Id. at 430 (quoting Nat’l Mut. Ins. Co. v. Tidewater Transfer Co.,
337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting)). A property interest may be
created by § 415(b) even in the absence of a private right of action. See McClain v. Nw.
Cmty. Corrs. Ctr. Judicial Corrs. Bd., 440 F.3d 320, 328-32 (6th Cir. 2006) (separately
analyzing whether plaintiff has a private right of action and a protected property
interest).
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 14

Amtrak cites Hughlett v. Romer-Sensky, 497 F.3d 557, 567 (6th Cir. 2006), for
the proposition that “a statute that fails to confer a private right of action also necessarily
fails to provide a protectable property interest for purposes of the Due Process Clause.”
However, unlike § 415(b), which involves an actual mandate, the regulations at issue in
Hughlett were “‘substantial compliance’ provisions in Spending Clause legislation,” i.e.,
conditions that the state government had to meet in order to qualify for federal funds, see
id. at 564 (citation omitted), which the Supreme Court had already termed “simply a
yardstick . . . to measure . . . performance of a State’s . . . program,” Blessing v.
Freestone, 520 U.S. 329, 343 (1997). The regulations did not command the state to give
plaintiffs anything, see Printz v. United States, 521 U.S. 898, 935 (1997) (holding that
the federal government cannot conscript state officers to carry out federal law), but only
set the bar for what the state would have to do to participate in a federal program,
see South Dakota v. Dole, 483 U.S. 203, 206-07 (1987). In such a case, the property
interest analysis will certainly be “coterminous with that for a private right of action,”
but Hughlett should not be broadly generalized to cases involving actual mandates, such
as that in § 415(b).

A statute creates a protected property interest when it “both confers [a] benefit
and limits the discretion of the [government] to rescind the benefit.” Med Corp., Inc. v.
City of Lima, 296 F.3d 404, 410 (6th Cir. 2002). The question of whether a benefit was
conferred is not merely a question of whether the law, in fact, caused some benefit to
accrue to the plaintiff. For example, although a woman may benefit when police arrest
her estranged husband for violating a restraining order, the statute mandating arrest does
not confer a benefit on her so as to create a protected property interest. See Town of
Castle Rock v. Gonzales, 545 U.S. 748 (2005). The recipient “clearly must have more
than an abstract need or desire for” the benefit and must have “more than a unilateral
expectation of it.” Roth, 408 U.S. at 577. Grants of a horse-trainer’s license, utility
services, disability benefits, a driver’s license, and welfare benefits have all sufficed to
meet the “benefit conferral” requirement. See Logan, 455 U.S. at 430-31 (collecting
cases).
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 15

Even though Congress enacted § 415(b) for the benefit of Amtrak, the
requirement that the redemption be for “fair market value” nonetheless confers a benefit
on shareholders, including APU. A statute designed for the benefit of a class may confer
benefits on those outside the class. For example, although licensing requirements are
usually enacted for the benefit of the general public and not for the benefit of licensees,
see, e.g., Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255,
259 (5th Cir. 2009) (stating that mold remediation licensing requirements “were
expressly designed to protect the public”), the license is still a benefit conferred on the
licensee. See, e.g. Barry v. Barchi, 443 U.S. 55, 64 (1979) (acknowledging that a horse
trainer had a property interest in his trainer license). Likewise, requiring a fair-value
redemption of APU’s shares confers a benefit on APU, even though the redemption
provision was not enacted primarily for the purpose of benefitting APU.

The second element of a property interest, a limit on the government’s discretion
to rescind the benefit, may be sufficient even if it leaves a considerable amount of
discretion in the government’s hands. For example, the Second Circuit appeared to
approve of several district courts’ holdings that the somewhat vague mandate to provide
“each inmate [with] a program of education which . . . seems most likely to further the
process of socialization” created a property interest in at least some education that was
not “wholly unsuited” to socialization. See Handberry v. Thompson, 446 F.3d 335, 354
(2d Cir. 2006) (citations omitted). However, if the government has the discretion to
rescind the benefit entirely, there is no property interest. See EJS Props., LLC v. City
of Toledo, 698 F.3d 845, 856-57 (6th Cir. 2012).

Section 415(b) clearly limits the government’s discretion and thereby creates a
protected property interest. The provision contains a deadline, October 1, 2002, and the
requirement that redemption be for “fair market value.” Although the latter requirement
is not as precise as the deadline, it can be objectively substantiated and determined to
either be met or not met. See United States v. Abbey, 560 F.3d 513, 523 (6th Cir. 2009)
(rejecting the argument that “fair market value” is a subjective standard).
No. 11-4054 Am. Premier Underwriters, et al. v. Nat’l R.R. Passenger Corp. Page 16

Even though § 415(b) does not imply a private right of action, it creates a
protected property interest, on behalf of APU, in a fair-value redemption of Amtrak
shares. As the holder of a protected property interest, APU is entitled to some degree
of process before being deprived of its interest. See Mathews v. Eldridge, 424 U.S. 319,
335 (1976) (describing the three-factor standard for adequacy of process). Because
APU’s due process claim seeks only equitable relief, Meyer is no obstacle. The district
court erred in dismissing this claim.

D.

We do not address whether the statute of limitations should bar APU’s due
process claim (the only remaining claim). The district court addressed this issue in a
single paragraph, stating that “Plaintiffs’ claims are not time-barred, inasmuch as they
relate to the question of the value of the shares . . . .” There was no need to do a
thorough analysis on each claim, or even reach the issue at all, since the district court
had dismissed all the claims on alternate grounds. Now that we have narrowed the field
to a single remaining claim and the statute of limitations question may be dispositive,
we leave it to the district court to perform, in the first instance, a thorough analysis of
whether APU’s due process claim is, on its face, time-barred.

Because the remaining claims fail on other grounds, there is no need to reach the
issue of whether they would have been barred by a statute of limitations or by the
1978 Settlement Agreement.

III.

For the above reasons, we reverse the judgment as to APU’s fourth claim, the
claim that Amtrak’s valuation of APU’s shares denied APU due process in violation of
the Due Process Clause of the Fifth Amendment. We remand this claim to the district
court for proceedings consistent with this opinion. We affirm the judgment as to the
remaining claims.