**13-4161-cv National Railroad Passenger Corporation v. McDonald**  UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2 August Term, 2014 3 (Argued: August 27, 2014 Decided: February 24, 2015) 4 Docket No. 13-4161-cv 5

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 6 NATIONAL RAILROAD PASSENGER CORPORATION, 7 Plaintiff-Appellant , 8

v. 9 JOAN MCDONALD, COMMISSIONER, THE NEW YORK STATE DEPARTMENT OF 10 TRANSPORTATION, 11 12 Defendant-Appellee

. 13

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 14 Before: WINTER, RAGGI, and CARNEY, Circuit Judges

. 15 Appeal from a judgment of the United States District Court 16 for the Southern District of New York (Colleen McMahon, Judge ), 17 denying appellant’s motion for summary judgment on the ground 18 that New York’s taking of appellant’s land by eminent domain was 19 barred by federal law and granting appellee’s motion for summary 20 judgment on grounds of Eleventh Amendment immunity and statute of 21 limitations. We affirm on statute-of-limitations grounds. 22 KATHLEEN M. SULLIVAN (Christopher 23 E. Kulawik, on the brief ), Quinn 24 Emanuel Urquhart & Sullivan, LLP, 25

1New York, NY, forPlaintiff1 Appellant

. 2 3 CECELIA C. CHANG, Special Counsel 4 (Barbara D. Underwood, Solicitor 5 General, Andrew W. Amend & Mark H. 6 Shawhan, Assistant Solicitors 7 General, of counsel ), on the brief 8 forEric T. Schneiderman, Attorney 9 General of the State of New York, 10 forDefendant-Appellee

. 11 12 WINTER, Circuit Judge: 13 14 The National Railroad Passenger Corporation (“Amtrak”) 15 appeals from Judge McMahon’s grant of summary judgment dismissing 16 its federal Supremacy Clause claims brought against Joan 17 McDonald, Commissioner of the New York State Department of 18 Transportation (the “Commissioner”). Amtrak’s complaint claimed 19 that, in light of federal statutes that organize and regulate 20 Amtrak, the Supremacy Clause of the United States Constitution 21 deprived the New York State Department of Transportation 22 (“NYSDOT”) of authority to condemn Amtrak’s property by eminent 23 domain. Because Amtrak brought its federal claims more than six 24 years after its claims accrued, the action was time-barred. We 25 therefore affirm. 26
BACKGROUND 27 The relevant facts are undisputed. 28 Amtrak is a private corporation created by the Rail 29 Passenger Service Act of 1970, 49 U.S.C. § 24101 et seq. , to 30 operate intercity commuter rail service throughout the United 31

2States. See49 U.S.C. §§ 24101(a); 24301(a)(2). In furtherance 1 of its objectives, Amtrak owns and uses real property, much of 2 which was conveyed to it pursuant to the Regional Rail 3 Reorganization Act of 1973. See45 U.S.C. § 701 et seq. 4 The NYSDOT is currently engaged in a project called the 5 Bronx River Greenway, involving joint federal and state efforts 6 to convert a 23-mile-long stretch of land along both sides of the 7 Bronx River into urban parkland. Part of the planned Greenway 8 adjoins Amtrak’s Northeast Corridor rail lines. In the course of 9 carrying out the project, NYSDOT determined that it needed to 10 build on several parcels of land owned by Amtrak. The 11 Commissioner sought to acquire the land by eminent domain under 12 the authority given her by the New York State Highway Law, N.Y. 13 High. Law §§ 22, 30 (McKinney 2004), and the Eminent Domain 14 Procedure Law (“EDPL”), N.Y. Em. Dom. Proc. Law § 101 et seq. 15 (McKinney 2004). 16 Before resorting to eminent domain, NYSDOT contacted Amtrak 17 and attempted to negotiate the purchase of the land and easements 18 it needed. As a result, beginning in 2001, NYSDOT and Amtrak 19 communicated for several years about the Greenway project’s need 20 for the land in question. However, a stalemate resulted. 21 Although Amtrak was willing to sell the land to New York, it 22 demanded indemnification from all potential environmental cleanup 23 liability and the right to pre-approve NYSDOT’s entering and 24

3working on the land. NYSDOT did not make the desired 1 concessions. 2 In April 2005, NYSDOT began proceedings under the EDPL to 3 condemn the properties. In accordance with EDPL §§ 202-203, 4 NYSDOT published notices of a public hearing. It also notified 5 Amtrak officials that the hearing would occur on May 19, 2005. 6 On May 11, 2005, Roger Weld, a NYSDOT employee, called and 7 emailed a regional Amtrak official, Earl Watson, and notified him 8 of the hearing. Watson, in turn, forwarded the NYSDOT email to 9 the Amtrak personnel with authority to act in eminent domain 10 cases, namely the Project Director of Real Estate Development -- 11 Sheila Sopper -- and the legal department. However, NYSDOT’s 12 EDPL-mandated notice was sent to an erroneous address for Amtrak, 13 not at the statutory address where Amtrak is to receive service 14 of process. See49 U.S.C. § 24301(b); N.Y. Em. Dom. Proc. Law §§ 15 202-03. 16 On May 19, 2005, NYSDOT held the public hearing as 17 scheduled. No one from Amtrak attended, and Amtrak did not 18 submit written comments. Subsequently, on August 17, 2005, 19 NYSDOT published the determinations and findings necessary for 20 condemnation of the land. SeeN.Y. Em. Dom. Proc. Law § 204. 21 Amtrak could have challenged the condemnation under the EDPL’s 22 judicial review provision, seeid. § 207, but did not. As it 23 conceded at oral argument, it could also have brought the present 24

4action. Instead, from 2005 through 2008, it continued to discuss 1 the Greenway project with NYSDOT. 2 Meanwhile, in 2007 and 2008, NYSDOT sent Amtrak notice that 3 it planned to condemn six parcels and made an offer of 4 compensation. On February 19, 2008, the Commissioner filed 5 notices of appropriation and maps with the county clerk. When 6 those documents were filed, title to the land vested in New York 7 state. Id. § 204; seeid. § 402(A)(3). A year and a half later, 8 on August 13, 2009, Sopper sent NYSDOT “agreement of sale” 9 documents that proposed to sell the land and easements for the 10 same price as the compensation proffered by NYSDOT but also 11 provided for Amtrak’s pre-approval of construction and for 12 indemnification for environmental liability. On August 28, 2009, 13 NYSDOT responded that it had already acquired title to the 14 parcels by eminent domain. Nearly two and a half years later, on 15 April 9, 2012, Amtrak brought the present action claiming that 16 the takings were invalid under the Supremacy Clause as expressly 17 or impliedly preempted by federal law. Joint App. at 8-22. 1 18 The district court held that Amtrak’s Supremacy Clause 19 claims against the Commissioner were barred under the Eleventh 20 Amendment. Nat’l R.R. Passenger Corp. v. McDonald , 978 F. Supp. 21 2d 215, 245 (S.D.N.Y. 2013). Alternatively, it held them time22

1 Condemnation proceedings for one parcel are not yet completed, but the district court’s dismissal on time-bar grounds applies to that parcel as well.

5barred, because Amtrak brought suit over six years after it knew 1 or should have known that it had a claim. Id. at 242 & n.1. We 2 affirm on statute-of-limitations grounds. 3
DISCUSSION 4 We review de novowhether the Commissioner was entitled to 5 summary judgment. See, e.g. , Terry v. Ashcroft , 336 F.3d 128, 6 137 (2d Cir. 2003). Summary judgment is appropriate only where 7 there are no issues of material fact and the movant is entitled 8 to judgment as a matter of law. Id. We may affirm on any ground 9 with support in the record. McElwee v. County of Orange , 700 10 F.3d 635, 640 (2d Cir. 2012). 11 As noted, the district court proffered alternative 12 rationales for dismissing Amtrak’s claims: sovereign immunity 13 under the Eleventh Amendment and the time-bar of the relevant 14 statute of limitations. Nat’l R.R. Passenger Corp. , 978 F. Supp. 15 at 235, 242 & n.1. 16 The Eleventh Amendment bars suits against a state in federal 17 court unless that state has consented to the litigation. See 18 Papasan v. Allain , 478 U.S. 265, 276-77 (1986); Pennhurst State 19 Sch. & Hosp. v. Halderman , 465 U.S. 89, 100 (1984). An exception 20 exists for suits against state officers alleging a violation of 21 federal law and seeking injunctive relief that is prospective in 22
nature. SeeEdelman v. Jordan , 415 U.S. 651, 675-77 (1974); 23 accordVa. Office for Protection & Advocacy v. Stewart , 131 S. 24

6Ct. 1632, 1639 (2011). If appellee is entitled to Eleventh 1 Amendment immunity, we would lack jurisdiction. SeeMcGinty v. 2 New York , 251 F.3d 84, 100 (2d Cir. 2001); see alsoWoods v. 3 Rondout Valley Central Sch. Dist. Bd. of Educ. , 466 F.3d 232, 238 4 (2d Cir. 2006). Ordinarily, therefore, we would reach this issue 5 first. 6 However, Eleventh Amendment immunity “is a privilege which 7 may be waived.” Gunter v. Atl. Coast Line R.R. Co. , 200 U.S. 8 273, 284 (1906); seeGardner v. New Jersey , 329 U.S. 565, 574 9 (1947); Clark v. Barnard , 108 U.S. 436, 447 (1883). Also, we 10 have discretion to dispose of a case on a non-merits issue before 11 considering a jurisdictional question. 12 Because one of the parcels is not subject to sovereign 13 immunity, seeNote 1, supra , the statute of limitations issue has 14 to be resolved. The district court held that Amtrak’s Supremacy 15 Clause preemption claim as to the seventh parcel, seenote 1, 16
supra , was time-barred under New York’s six-year catch-all 17 limitations period, N.Y. C.P.L.R. § 213(1) (McKinney 2004), and, 18 by footnote, that its claims as to the six parcels already 19 condemned were accordingly barred for the same reason. Nat’l 20 R.R. Passenger Corp. , 978 F. Supp. 2d at 242 & n.1. 21 At oral argument, recognizing that the limitations issue 22 was dispositive as to all the parcels, the state urged us to 23 exercise our discretion to reach the statute-of-limitations issue 24

7without deciding whether the suit is barred by sovereign 1 immunity. SeeTr. of Oral Arg. at 21:2-7. In view of our 2 disposition of the limitations issue, we may treat the state’s 3 suggestion as a waiver of the immunity issue for purposes of this 4 appeal. 5 The parties disagree as to the relevant statute of 6 limitations. The Commissioner urges upon us the 30-day appeal 7 period under EDPL § 207 or, alternatively, the three-year period 8 applicable to Bivens actions. Kronisch v. United States , 150 9 F.3d 112, 123 (2d Cir. 1998). Amtrak argues for a six-year 10 period based on Niagara Mohawk Power Corp. v. FERC , 162 F. Supp. 11 2d 107, 137-38 (N.D.N.Y. 2001), aff’d , 306 F.3d 1264 (2d Cir. 12 2002). We need not resolve this dispute because Amtrak had 13 notice of its claims well before April 9, 2006, the date six 14 years before it filed the present action on April 9, 2012. The 15 action is, therefore, barred even if the six-year limitations 16 period applies. 17 Amtrak argues that various deficiencies in the NYSDOT’s 18 giving of notice of the eminent domain proceedings prevented the 19 limitations period from beginning to run. For example, NYSDOT 20 failed to give Amtrak formal notice strictly according to the 21 procedures of the EDPL and did not serve Amtrak at the address 22 referenced in 49 U.S.C. § 24301(b). But full compliance with 23 formal notice requirements is not necessarily the trigger 24

8beginning the relevant limitations period. See, e.g. , Veltri v. 1 Bldg. Serv. 32B-J Pension Fund , 393 F.3d 318, 326 (2d Cir. 2004) 2 (declining to establish “mechanical rule that failure to notify a 3 claimant of her right to bring an action in court automatically 4 tolls the statute of limitations”). Rather, Amtrak’s claims 5 accrued -- and the limitations clock started running -- when 6 Amtrak had reason to know of its injury. 7 “Under federal law, a cause of action generally accrues 8 ‘when the plaintiff knows or has reason to know of the injury 9 that is the basis of the action.’” M.D. v. Southington Bd. of 10 Educ. , 334 F.3d 217, 221 (2d Cir. 2003) (quoting Leon v. Murphy , 11 988 F.2d 303, 309 (2d Cir. 1993)). We do not pause to determine 12 the precise date on which NYSDOT knew, or had reason to know, 13 because both possible dates are well beyond six years from the 14 date this action was brought. In 2005, when Weld sent the email 15 informing Amtrak that NYSDOT would hold a May 2005 public hearing 16 on the subject of condemning Amtrak’s land, Amtrak arguably had 17 reason to know of the alleged Supremacy Clause violation that is 18 the basis of its present claim. Eminent domain proceedings cloud 19 title, and Amtrak concedes that it suffered not merely potential, 20 but actual injury once its property became the subject of EDPL 21 proceedings. At the very latest, Amtrak had notice of this harm 22 in August 2005, when NYSDOT announced its findings. SeeDidden 23 v. Village of Port Chester , 173 F. App’x 931, 933 (2d Cir. 2006) 24

9(summary order). Accordingly, Amtrak had actual notice more than 1 six years before it filed its lawsuit. 2 Amtrak argues that it suffered two separate injuries: the 3 first when it learned that NYSDOT planned to take its land, and 4 the second in 2008, when the Commissioner actually executed the 5 takings. However, the completion of the takings was merely the 6 final act of the intrusion on Amtrak’s alleged Supremacy Clause 7 rights that accrued in 2005 at the outset of the condemnation 8 proceedings. SeeCity of Plattsburgh v. Weed , 945 N.Y.S. 2d 812, 9 813 (App. Div. 3d Dep’t 2012) (exercise of eminent domain is a 10 single “two-step process under the EDPL”). It would make no 11 sense to begin a limitations period -– or restart it –- when 12 title to the real estate actually vests in the state, an act that 13 occurs only after notice to interested parties and the requisite 14 findings have been made. Indeed, Amtrak’s proposed rule would 15 leave the validity of a condemnation of its property in doubt for 16 some six years after title has passed. Common sense, not to 17 mention the record of Amtrak’s failure to take any of the obvious 18 protective measures, directs otherwise. 2The limitations period, 19 therefore, did not reset when NYSDOT took formal title in 2008. 20

2 In that regard, Amtrak advances a post hoc argument to explain and avoid the consequences of its lassitude in the face of events that unambiguously portended condemnation. At oral argument, we were asked not to “impose a practical nightmare on Amtrak by inviting states to come in and do piecemeal takings . . . because it will be too much of a burden for Amtrak to come into court every time someone wants to take [its] property.” SeeTr. of Oral Arg. at 18. We know of no record evidence of such a “nightmare” or its purported consequences, and, even if we did, a legislative, rather than judicial remedy, would seem appropriate.

10Similarly, the takings are not an “ongoing violation” of 1 federal law. Once title vested in New York, the state acquired 2 the right to use the land by virtue of its title. What Amtrak 3 considers an “ongoing violation” -- New York’s entry onto and use 4 of the land -- is not even a violation of the law, because New 5 York has legal title to it. To hold otherwise would toll the 6 statute of limitations indefinitely for eminent domain challenges 7 by Amtrak. 8
CONCLUSION 9 Amtrak’s injury accrued at the very latest when the state 10 announced its findings. SeeDidden , 173 F. App’x at 933. The 11 judgment of the district court is, therefore, affirmed. 12 13

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