Fernandez v. Commissioner of Highways (ORDER)

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Thursday the 28th day of May, 2020.
Present: All the Justices
Michael Fernandez, D.D.S., Ltd.,
a Division of Atlantic Dental Care, PLC, Appellant,
against Record No. 191056
Circuit Court No. CL18-3017
Commissioner of Highways, Appellee.
Upon an appeal from a judgment
rendered by the Circuit Court of the City of
Virginia Beach.
Upon consideration of the record, briefs, and argument of counsel, the Court is of opinion
that there is no error in the judgment of the circuit court.
I. Background
On December 2, 2015, the Virginia Department of Transportation (“VDOT”) sent
Michael Fernandez, D.D.S. (“Fernandez”) a letter informing him that he would be required to
relocate his dental office to accommodate an interstate road project. (JA 2.) The letter notified
Fernandez that he would be entitled to relocation expenses and that VDOT intended to “assist
[him] in [his] relocation to minimize any inconveniences caused by [his] move.” VDOT further
advised Fernandez that he would be given thirty days’ written notice before he was to vacate his
dental office.
VDOT supplied Fernandez with lists of available properties that could potentially house
his dental practice. Fernandez rejected all the suggested properties as unsuitable. Instead,
Fernandez selected an office space that was not equipped for a dental practice and required
“extensive build-out and renovation allegedly costing several hundred thousand dollars to make
it useable for a dental practice.”
On April 18, 2016, VDOT informed Fernandez by letter that he must vacate his dental
office by May 18, 2016. Fernandez failed to vacate and VDOT initiated eviction proceedings on
August 5, 2016. The suit was settled by a consent order in which Fernandez agreed to vacate his
office by March 31, 2017.
On September 13, 2017, after moving his practice, Fernandez submitted a claim to
VDOT for $567,278.87 in relocation assistance payments. VDOT responded by letter noting
that “[d]uring the review process of [Fernandez’s] previously submitted claim and supporting
documentation . . . , there were . . . questions and concerns” that he promised to address. VDOT
further advised that it would “expeditiously and carefully review” all the documentation that
Fernandez provided so the agency could “make an informed determination of any
reimbursements available.”
VDOT ultimately approved $35,346.68 in reimbursements as well as $255.00 for time
spent planning the move of the dental practice. However, VDOT informed Fernandez that the
agency could not make a decision about the balance of his claim until he submitted additional
documentation detailing his expenses. In a letter dated June 15, 2018, VDOT notified Fernandez
that the agency was “unable to proceed any further in the review of [his] previously submitted
relocation claim for payment until [VDOT] receive[d] [the] information requested.” VDOT also
advised Fernandez that he had the right to appeal any decision made by VDOT.
Fernandez neither submitted the additional documentation requested by VDOT, nor did
he appeal VDOT’s decision. Instead, he sued the Commissioner of Highways in circuit court,
seeking a declaratory judgment ordering the Commissioner to provide “the statutorily required
relocation benefits” under Code § 25.1-406 of the Virginia Relocation Assistance Act
(“VRAA”). See Code § 25.1-400 et seq. VDOT filed a demurrer and plea in bar asserting that
sovereign immunity barred Fernandez’s suit and that there was no private cause of action
afforded under the VRAA.
The circuit court sustained VDOT’s demurrer, “find[ing] dispositive the assertion that
there is no private cause of action under the [VRAA].” This appeal followed.
II. Analysis
Upon appeal of a circuit court’s decision to sustain a demurrer, “we accept as true all
factual allegations expressly pleaded in the complaint and interpret those allegations in the light
most favorable to the plaintiff,” Sweely Holdings, LLC v. SunTrust Bank, 296 Va. 367, 370-71
(2018) (citation omitted), but “we review all conclusions of law de novo,” Coward v. Wellmont
Health Sys., 295 Va. 351, 359 (2018) (citation omitted).
On appeal, Fernandez contends that a private right of action should be inferred from the
VRAA. The VRAA states that “[w]henever the acquisition of real property for a program or
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project undertaken by a state agency will result in the displacement of any person, the state
agency shall make fair and reasonable relocation payments to the displaced person.” Code
§ 25.1-406. The VRAA further authorizes state agencies “to promulgate such rules and
regulations as are necessary to carry out the provisions of [the VRAA].” Code § 25.1-402.
VDOT has developed regulations to determine whether a displaced person is eligible to receive
relocation assistance payments and, if so, the amount of payments that the eligible person is
entitled to receive. 24 VAC §§ 30-41-10 and 30-41-80. VDOT regulations further provide for a
multi-level administrative review process, concluding with judicial review of the final agency
action. 24 VAC § 30-41-90.
“In Virginia, ‘substantive law’ determines whether a private claimant has a right to bring
a judicial action.” Cherrie v. Virginia Health Servs., Inc., 292 Va. 309, 314 (2016).
“Substantive law includes the Constitution of Virginia, laws enacted by the General Assembly,
and historic common-law principles recognized by our courts.” Id. This Court has made
abundantly clear that when a statute, such as the VRAA, is silent on the matter of a private right
of action, one will not be inferred unless the General Assembly’s intent to authorize such a right
of action is “palpable” and shown by “demonstrable evidence.” Id. at 315. “It simply is not
enough that the plaintiff has ‘a personal stake in the outcome of the controversy,’ or that ‘the
plaintiff’s rights will be affected by the disposition of the case.’” Id. (quoting Small v. Federal
Nat’l Mortg. Ass’n, 286 Va. 119, 126 (2013)). “Similarly, ‘we do not infer a private right of
action when the General Assembly expressly provides for a different method of judicial
enforcement.’” Lafferty v. School Bd. of Fairfax Cty., 293 Va. 354, 362 (2017) (quoting Cherrie,
292 Va. at 315).
No Virginia appellate decisions have specifically addressed whether the VRAA provides
an implied private right of action. However, we note that the VRAA was modelled after the
federal Uniform Relocation Act (“URA”). * Therefore, the federal decisions addressing the issue
*
The [URA] by its terms binds only federal agencies; but a
federal agency may not provide funds for state projects involving
condemnation without first receiving “satisfactory assurances” that
displaced persons will be given such relocation payments and
assistance “as are required to be provided by a Federal agency”
under the Act. 42 U.S.C. § 4630. In order to qualify for federal
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of whether Congress intended for a private right of action to exist under the URA are particularly
instructive here. See, e.g., Werth v. Fire Companies’ Adjustment Bureau, 160 Va. 845, 856–57
(1933) (concluding that where the General Assembly employs language in a Virginia statute
indicating that the statute “should be so construed as to place [it], as near as may be, in line with
Federal . . . law,” cases that construe the corresponding federal statute, while not controlling in
the construction of the Virginia statute, are nevertheless “highly persuasive”); Norfolk Motor
Exch. v. Grubb, 152 Va. 471, 477 (1929) (same).
The prevailing view of the federal courts is that no private cause of action is created
under the URA for relocation benefits. See, e.g., Osher v. City of St. Louis, 903 F.3d 698, 702-03
(8th Cir. 2018) (no private right of action under federal relocation assistance statute, 42 U.S.C. §
4622); Delancey v. City of Austin, 570 F.3d 590, 594-95 (5th Cir. 2009) (no private right of
action for monetary damages under URA); Clear Sky Car Wash LLC v. City of Chesapeake, 910
F. Supp. 2d 861, 875 (E.D. Va. 2012), aff’d on other grounds, 734 F.3d 438 (4th Cir. 2014) (no
federal right of action under URA).
In the present case, the substantive law pertaining to the VRAA does not indicate that the
General Assembly intended to create or imply the existence of a private right of action. Code
§ 25.1-406 of the VRAA requires VDOT to make certain relocation payments to displaced
individuals. However, the VRAA does not state an individual right to those payments, nor does
it use language that would imply such a right. In addition, there is an express provision
providing for an administrative process, suggesting that the General Assembly intended to
exclude a private right of action. See Osher, 903 F.3d at 703.
Fernandez contends that because only Code § 25.1-417(B) of the VRAA specifically
denies the creation of any private right of action, the General Assembly intended for the other
provisions of the VRAA to include an implied private right of action. We conclude, as did the
Osher court, that “an express disavowal of rights under one section . . . does not amount to an
unambiguous manifestation of intent to create enforceable rights under another.” Therefore, we
funds, therefore, many states, such as Virginia, have adopted
legislation modelled on the Relocation Act.
Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Virginia,
464 U.S. 30, 32 (1983) (some citations omitted).
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hold that no private cause of action for payment of relocation expenses can be implied under
Code § 25.1-406 of the VRAA.
Further, Fernandez contends on appeal that if the VRAA does not create an implied right
of action, “then condemnors may ignore the statute’s requirements with impunity.” We find this
argument to be without merit. Fernandez failed to exhaust the administrative remedies afforded
to him under 24 VAC § 30-41-90. An administrative review under this regulation “consists of
two levels. An interim appeal is heard in the district office. If the appellant is not satisfied on
completion of the interim appeal, a final appeal may be addressed to the Commissioner of
Highways.” 24 VAC § 30-41-90(A). If the displaced person remains dissatisfied following the
Commissioner’s final decision, he or she has “the right to seek judicial review.” 24 VAC § 30-
41-90(C). Instead of following this administrative process, Fernandez directly filed suit against
the Commissioner of Highways in circuit court.
There is no evidence in the record that VDOT ignored or refused to decide Fernandez’s
claim for relocation expenses, as he alleges. If such evidence did exist, Fernandez would not be
without recourse. He would be entitled to file suit under the Virginia Administrative Process
Act, which authorizes courts to “compel agency action unlawfully and arbitrarily withheld or
unreasonably delayed.” Code § 2.2-4029. Additionally, this Court has ruled that a writ of
mandamus may be sought when a public official or body refuses to perform a duty required
under the law. See Broaddus v. Board of Supervisors, 99 Va. 370, 372 (1901).
III. Conclusion
For the reasons stated, we affirm the decision of the circuit court sustaining VDOT’s
demurrer.
This order shall be published in the Virginia Reports and certified to the Circuit Court for
the City of Virginia Beach.
A Copy,
Teste:
Douglas B. Robelen, Clerk
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