PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1492

CLEAR SKY CAR WASH LLC; CLEAR SKY CAR WASH OPERATING LLC; 

SAMUEL JACKNIN, founder, owner and managing agent of Clear 

Sky; CHARLES EINSMANN, co−founder, co−owner and agent of 

Clear Sky,

Plaintiffs - Appellants,

v.

CITY OF CHESAPEAKE, VIRGINIA; CAROLE GILLESPIE, natural 

person, individually and in her capacity as City Right of 

Way Manager; GREENHORNE & O’MARA, INCORPORATED, d/b/a 

Greenhorne & O’Mara Consulting Engineers, and in its 

capacity as and for the City; THOMAS COPELAND, natural 

person, individually and as agent of the City; EVELYN JONES, 

natural person, individually and as agent of the City; 

DANIEL JONES, natural person, individually and as agent of 

the City; VIRGINIA DEPARTMENT OF TRANSPORTATION, by and 

through the current Commissioner of Highways, now Gregory 

Whirley, Sr., in his capacity as such; UNITED STATES 

DEPARTMENT OF TRANSPORTATION, by and through its current 

Secretary, now Ray LaHood in his capacity as such,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Mark S. Davis, District 

Judge. (2:12-cv-00194-MSD-LRL; 2:12-cv-00195-MSD-TEM)

Argued: October 29, 2013 Decided: February 21, 2014 

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
2

Affirmed by published opinion. Judge Niemeyer wrote the 

opinion, in which Judge Motz and Judge Diaz joined.

ARGUED: Edward Joseph Grass, Burke, Virginia, for Appellants. 

Thomas Jeffrey Salb, BREEDEN, SALB, BEASLEY & DUVALL, PLC, 

Norfolk, Virginia; Kent Pendleton Porter, OFFICE OF THE UNITED 

STATES ATTORNEY, Norfolk, Virginia, for Appellees. ON BRIEF:

Rebecca L. Dannenberg, FRANKLIN & PROKOPIK, PC, Herndon, 

Virginia, for Appellees Greenhorne & O’Mara, Incorporated, 

Thomas Copeland, Evelyn Jones, and Daniel Jones. Christopher D. 

Eib, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for 

Appellee Virginia Department of Transportation. Neil H. 

MacBride, United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Alexandria, Virginia, for Appellee United States 

Department of Transportation.
3

NIEMEYER, Circuit Judge:

In connection with a project to widen Dominion Boulevard 

(U.S. Route 17) in the City of Chesapeake, Virginia, the City 

took the property of Clear Sky Car Wash LLC, consisting of a 

32,056-square-foot parcel of land on which Clear Sky operated a 

car wash. Following unsuccessful negotiations with Clear Sky to 

purchase the property, the City initiated a “quick take” 

proceeding to take the property, pursuant to Virginia Code §§ 

33.1-119 and 33.1-120, filing a “certificate of take” in state 

court and depositing $2.15 million with the court as its 

proffered just compensation. Under this procedure, the City was 

able to take title to the property immediately, leaving the 

resolution of any dispute over the property’s valuation to be 

resolved in condemnation proceedings.

Although the state proceedings were pending, Clear Sky and 

its principals commenced this action to challenge the City’s 

conduct (1) in arriving at its $2.15 million valuation (which 

Clear Sky contends was too low); (2) in negotiating with Clear 

Sky (which Clear Sky alleges was conducted in bad faith); and 

(3) in initiating the quick take proceeding “prematurely.” It 

claims that the City’s conduct violated the mandatory real 

property acquisition policies set forth in 42 U.S.C. § 4651, 

which are made applicable to state agencies when, as here,

federal funds are involved, see id. § 4655.
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On the defendants’ motions to dismiss, the district court 

concluded that § 4651 did not create enforceable rights and 

dismissed the complaint.

For the reasons that follow, we affirm.

I

In November 2008, the Chesapeake City Council passed a 

resolution approving a project of the Virginia Department of 

Transportation (“VDOT”) to widen a portion of Dominion Boulevard 

(U.S. Route 17) and to replace the bridge that passes over the 

southern branch of the Elizabeth River. The project was to be 

funded by the City, the VDOT, and the U.S. Department of 

Transportation (“USDOT”) and was to be managed by the City.

The project required that various parcels of land be 

acquired, including the parcel owned by Clear Sky. The City 

hired two separate appraisers to determine the value of Clear 

Sky’s parcel, and each appraisal relied on a square-foot basis 

of valuation, without considering comparative values of other 

pad sites.1

 In August 2011, the City transmitted copies of both

appraisals to Clear Sky and stated that it was accepting the 

 1 “Pad site” is understood to refer to any freestanding 

parcel of commercial real property located in front of or near a 

shopping center such that it benefits from traffic to the 

shopping center.
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appraisal that valued Clear Sky’s property at $2.15 million, the 

lower of the two.

Between August 2011 and January 2012, Clear Sky and the 

City discussed at length Clear Sky’s objections to the City’s 

appraisal. According to Clear Sky, some of the City’s agents 

eventually acknowledged problems with the appraisal, agreeing,

for example, that its depreciation calculation was incorrect. 

Nonetheless, on January 27, 2012, the City formally offered 

Clear Sky the $2.15 million amount as just compensation for 

Clear Sky’s property, and Clear Sky rejected the offer.

The City thereafter initiated a quick take proceeding, as 

authorized by the Virginia Code, filing a certificate of take in 

the Circuit Court for the City of Chesapeake on March 22, 2012, 

and depositing $2.15 million with the court. Clear Sky 

unsuccessfully attempted to remove that proceeding to federal 

court, see City of Chesapeake v. Clear Sky Car Wash LLC, No. 

2:12cv195, 2012 WL 3866508 (E.D. Va. Sept. 5, 2012), and 

simultaneously commenced this action, naming as defendants the

City, several of its employees and agents, the VDOT, and the 

USDOT. The complaint alleged that the defendants violated Clear 

Sky’s rights under the Uniform Relocation Assistance and Real 

Property Acquisition Policies Act of 1970 (“URA”), 42 U.S.C. 

§§ 4601-4655, in pursuing the acquisition of its property.
6

More particularly, the complaint alleged that in preparing 

for its taking of Clear Sky’s property, the City obtained two 

appraisals, both of which “undervalue[d]” the land by “at least 

$1 million” by failing to take into account the value of 

comparable pad sites. It alleged that the City then used those 

appraisals to conduct negotiations with Clear Sky in bad faith, 

failing to timely provide information in response to Clear Sky’s 

questions and providing information that was “largely 

incomplete” and “not all truthful.” It also alleged that even 

though the City recognized that the appraisal on which it had 

chosen to rely included errors in its depreciation calculation 

and failed to use “comparable properties outside the area,” the 

City never addressed these problems and instead stuck with its 

original appraisal of $2.15 million. Finally, the complaint 

alleged that the City inappropriately “declin[ed] to discuss 

settlement,” opting instead to file a certificate of take, which 

prematurely effected a quick take of Clear Sky’s property under 

Virginia law. Based on the City’s appraisals, negotiations, and 

quick take procedures, Clear Sky alleged that the City, its 

agents, and its partners violated Clear Sky’s rights under 42 

U.S.C. §§ 4651 and 4655.

Relying on these allegations, the complaint set forth six 

causes of action. Count I alleged that the defendants failed 

“to act in compliance with and subject to the mandates of the 
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[URA]” in a number of ways, including by obtaining and using 

inappropriate appraisals; conducting negotiations in bad faith;

failing to deposit “a sufficiently large sum” for the taking in 

court; filing their quick take proceeding “prematurely”; and 

“improperly attempting to obtain entry on and possession of the 

property.” Count II alleged that the defendants’ conduct 

violated Clear Sky’s rights under the Due Process Clauses of the 

Fifth and Fourteenth Amendments. Count III alleged that the 

conduct violated Clear Sky’s rights under the Equal Protection 

Clause of the Fourteenth Amendment. Count IV alleged that the 

defendants violated 42 U.S.C. §§ 1983 and 1985 in denying Clear 

Sky its interests in “the proper application of the [URA].” 

Count V alleged a Virginia common law claim for breach of 

contract. And Count VI alleged a Virginia common law claim for 

equitable estoppel. The complaint sought declaratory and 

injunctive relief and demanded damages “in a sum not less than

$9 million.”

The defendants filed motions to dismiss under Federal Rules 

of Civil Procedure 12(b)(1) and 12(b)(6), and the district court 

granted the motions, dismissing the complaint with a Memorandum 

Opinion dated December 18, 2012. See Clear Sky Car Wash, LLC v. 

City of Chesapeake, 910 F. Supp. 2d 861 (E.D. Va. 2012). The 

court held first that it lacked subject matter jurisdiction over 

Count I because it rested on alleged violations of the URA’s 
8

land acquisition policies, as set forth in Subchapter III of the 

Act, 42 U.S.C. §§ 4651-4655. Citing Gonzaga University v. Doe, 

536 U.S. 273 (2002), it found that Subchapter III did not create 

a federal right of action for landowners. To the extent that 

Clear Sky might have also been claiming a right to relocation 

assistance under Subchapter II of the URA, the court likewise 

concluded that that Subchapter created no right of action. In 

addition, the court noted as to Subchapter II that Clear Sky had 

“failed to allege that [it] made even one application for 

relocation assistance payments” and had similarly “allege[d] no 

facts concerning . . . advisory relocation assistance.” Clear 

Sky Car Wash, 910 F. Supp. 2d at 880-81, 83. It thus concluded 

that although it would generally have jurisdiction to review 

relocation assistance determinations under the Administrative 

Procedure Act (“APA”), Clear Sky had “failed to allege a final 

agency action sufficient to trigger such jurisdiction.” Id. at 

883.2 Based on its conclusion that the URA did not confer 

privately enforceable rights, the court dismissed Counts II, 

III, and IV for failure to state a claim. Finally, with respect 

to Counts V and VI, the court declined to exercise supplemental 

 2 We agree with the district court that Clear Sky’s 

complaint did not allege that the defendants violated Subchapter 

II by failing to provide relocation assistance. Accordingly, we 

do not address whether Clear Sky could have stated a claim under 

Subchapter II.
9

jurisdiction over the state law claims pursuant to 28 U.S.C. 

§ 1367(a) inasmuch as it had dismissed all the federal claims.

From the district court’s judgment, Clear Sky filed this 

appeal, challenging the court’s ruling that the URA did not 

create a private right of action and that neither 42 U.S.C. 

§ 1983 nor the APA provided it with avenues for relief under the 

URA.

II

Clear Sky notes on appeal that the URA requires federal 

agencies that are acquiring real property to take certain steps 

“to assure consistent treatment for owners . . . and to promote 

public confidence in Federal land acquisition practices,” 

listing ten specific policies that must be followed. 42 U.S.C. 

§ 4651. Because its property was taken in connection with a 

project funded in part by the United States, Clear Sky states 

correctly that § 4655 made § 4651 applicable to the City and the 

VDOT as a condition of federal funding. Therefore, because 

these policies were mandated by federal law and imposed on state

agencies, Clear Sky claims that it was entitled to enforce 

compliance with those policies (1) by a direct cause of action 

against the offending parties; (2) by an action under 42 U.S.C. 

§ 1983 to secure its rights in those policies; or (3) under the 

APA, which provides for review of agency actions -- in this 
10

case, the actions of the USDOT. We address these arguments in 

order.

A

To determine whether the URA creates an implied right of 

action for enforcement of the policies mandated by § 4651, we 

must determine “whether Congress intended to create a federal 

right.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). And,

to that end, we look to the relevant statute.

Section 4651 provides that “heads of Federal agencies 

shall, to the greatest extent practicable, be guided by” ten 

policies enumerated in that section when acquiring real property 

from landowners. 42 U.S.C. § 4651. The policies specify, for 

example, that the head of a federal agency shall “make every 

reasonable effort to acquire expeditiously real property by

negotiation,” obtain an appraisal of the real property at issue, 

and promptly “offer to acquire the property for” “an amount 

which he believes to be just compensation therefor,” but which 

shall in no event “be less than the agency’s approved appraisal

of the fair market value of such property.” Id. Section 4655 

then extends the reach of § 4651 by requiring federal agencies 

distributing federal funds to condition their grants to state 

agencies on their agreement to comply with § 4651’s land 

acquisition policies:
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[T]he head of a Federal agency shall not approve any 

. . . grant to . . . an acquiring agency under which 

Federal financial assistance will be available to pay 

all or part of the cost of any program or project 

which will result in the acquisition of real property 

. . . unless he receives satisfactory assurances from 

such acquiring agency that (1) in acquiring real 

property it will be guided, to the greatest extent 

practicable under State law, by the land acquisition 

policies in section 4651 of this title . . . .

Id. § 4655(a). As a result, state agencies that have received 

federal funds for a project generally “must comply with § 4651 

to the greatest extent legally possible under state law.” City 

of Columbia v. Costle, 710 F.2d 1009, 1013 (4th Cir. 1983).

In short, the URA directs that “the head of a Federal 

agency” be guided by the policies of § 4651 when acquiring land 

or that he assure himself that the state agencies are guided by 

them when using federal funds to acquire land. The statutory 

directive is aimed at the agency head, and it omits any language 

conferring rights or benefits on landowners. Indeed, to the 

contrary, § 4602(a) specifically provides: “The provisions of 

section 4651 of this title create no rights or liabilities and 

shall not affect the validity of any property acquisitions by 

purchase or condemnation.” 42 U.S.C. § 4602(a) (emphasis 

added).

It is axiomatic that we will not recognize an implied right 

of action under a statute “where the text and structure of [the] 

statute provide no indication that Congress intend[ed] to create 
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new individual rights.” Gonzaga, 536 U.S. at 286. To create a 

private right of action, Congress must “speak[] with a clear 

voice,” id. at 280, and the statute must “unambiguously,” id. at 

283, express the intent “to create not just a private right but 

also a private remedy,” id. at 284 (quoting Alexander v. 

Sandoval, 532 U.S. 275, 286 (2001)). In this case, not only did 

Congress not speak with a clear voice and unambiguously provide 

Clear Sky both a private right and remedy, it spoke with a clear 

voice and unambiguously to the contrary, stating that the 

policies in § 4651 “create no rights or liabilities.” 42 U.S.C. 

§ 4602(a).

Clear Sky would have us imply a private right because 

§ 4602(a) only refers to § 4651, which lists the policies, and 

does not include a reference to § 4655, which requires that the 

federal policies be applied to state agencies. This argument, 

however, overlooks the respective roles of §§ 4651 and 4655 and 

their relationship to each other. Section 4655 does not 

independently create any policies. Rather, it serves only to 

extend the § 4651 policies to state agencies when those agencies

use federal funds to acquire real property. It is § 4651 that

provides the source for the mandated substantive policies, and 

those policies are expressly qualified by § 4602(a), which 

rejects their use as a basis for a right of action.
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At bottom, we hold that the URA, in imposing policies on 

the heads of federal and state agencies in §§ 4651 and 4655, 

creates no individually enforceable rights. Therefore, Clear 

Sky lacks any basis for a private action to remedy violations of 

those sections. See Gonzaga, 536 U.S. at 286.

B

Clear Sky contends that even if it lacks a right of action 

under the URA itself, 42 U.S.C. § 1983 provides it with a 

vehicle to enforce §§ 4651 and 4655.

Section 1983, however, does not confer any substantive 

rights; rather, it supplies a remedy for rights conferred by 

other federal statutes or by the Constitution. See Gonzaga, 536 

U.S. at 284 (“Once a plaintiff demonstrates that a statute 

confers an individual right, the right is presumptively 

enforceable by § 1983”). And determining whether another 

statute -- here, 42 U.S.C. §§ 4651 and 4655 -- confers rights 

for enforcement under § 1983 “is no different from the initial 

inquiry in an implied right of action case.” Id. at 285.

Because we conclude that 42 U.S.C. §§ 4651 and 4655 do not 

confer individual rights enforceable by Clear Sky, we also 

conclude that Clear Sky cannot enforce those sections under 42 

U.S.C. § 1983. Accordingly, we affirm the district court’s 

dismissal of Clear Sky’s § 1983 claim.
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C

Finally, Clear Sky asserts that it “has a right to 

immediate judicial review based on the APA.” It argues that the 

USDOT’s failure to require the City to comply with the URA was 

“per se arbitrary, capricious, and not in accordance with the 

law,” and it contends that it is entitled, under the APA, to an 

injunction ordering the USDOT to compel the other defendants to 

comply with § 4651.

Because the URA expressly provides that § 4651 “create[s] 

no rights or liabilities,” 42 U.S.C. § 4602(a), some courts have 

concluded that there can be no judicial review under the APA of 

an agency’s compliance with § 4651’s policies. See, e.g., 

Paramount Farms, Inc. v. Morton, 527 F.2d 1301, 1304 (7th Cir. 

1975); see also 5 U.S.C. § 701(a)(1) (withdrawing APA review 

where relevant statute “preclude[s] judicial review”). But 

regardless of whether § 4602(a) can be interpreted as precluding 

judicial review under the APA, Clear Sky cannot seek relief 

under the APA because it never asserted an APA claim in its 

complaint. The only mention of the APA is made in the 

complaint’s opening statement of jurisdiction:

Jurisdiction in this Court is proper for all of the 

claims and causes of action in this Complaint pursuant 

to 28 U.S.C. § 1331 (original federal question 

jurisdiction), 1343, 1346(a)(2) (claims against the 

United States not exceeding $10,000), 1358 (in the 

alternative, original jurisdiction for condemnation by 

agencies of the United States), et seq., 5 U.S.C. 
15

§§ 701 and 702 et seq., (federal judicial review of 

certain administrative matters), 28 U.S.C. §§ 2201-

2202 (declaratory relief regarding rights and legal 

relations); 28 U.S.C. § 1367(a) (supplemental 

jurisdiction in the alternative), as well as in 

relation to 42 U.S.C. §§ 1983, 1985, and 1988 et seq., 

42 U.S.C. § 4601 et seq., and 49 C.F.R. Part 24.

(Emphasis added). This passing reference is insufficient to 

plead a cause of action under the APA for judicial review of 

“final agency action for which there is no other adequate remedy 

in a court.” 5 U.S.C. § 704.

Moreover, even reading the alleged facts of the complaint 

liberally does not remotely suggest the existence of a “final 

agency action,” as necessary to justify judicial review under 

the APA. “Agency action,” as used in 5 U.S.C. § 704, refers to 

“an agency’s determination of rights and obligations, whether by 

rule, order, license, sanction, relief, or similar action.” 

Village of Bald Head Island v. U.S. Army Corps of Eng’rs, 714 

F.3d 186, 193 (4th Cir. 2013) (emphasis added) (citation 

omitted). And for agency action to be final, it must “mark the 

consummation of the agency’s decisionmaking process.” Id. at 

194 (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)); see 

also Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., 637 

F.3d 259, 265 (4th Cir. 2011). Moreover, final agency action 

does not encompass an agency’s “day-to-day manage[ment].” 

Village of Bald Head Island, 714 F.3d at 194. At most, the 

complaint here suggests only arguably that the USDOT should have 
16

monitored the City’s conduct more closely and required it to 

comply with § 4651. But such ongoing oversight does not amount 

to final agency action under § 704.

Accordingly, we reject Clear Sky’s argument that it has an 

APA claim against the USDOT to require it to enforce the 

policies of § 4651.

For the foregoing reasons, the judgment of the district 

court dismissing Clear Sky’s complaint is

AFFIRMED.