*

The Honorable Amul R. Thapar, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

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 _________________

AMERICAN PREMIER UNDERWRITERS, INC.;

AMERICAN FINANCIAL GROUP, INC.,

Plaintiffs-Appellants,

v.

NATIONAL RAILROAD PASSENGER

CORPORATION, aka Amtrak,

Defendant-Appellee.

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No. 11-4054

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.

_________________

OPINION

_________________

COLE, Circuit Judge. Plaintiffs-Appellants American Premier Underwriters, Inc.

and American Financial Group, Inc. (collectively “APU”) appeal the district court’s

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. CenzonDecarlo 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 rightscreating 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.