The appellant, Fernandez, failed to file an administrative appeal and attempted to sue VDOT directly under the VRAA. VDOT demurred to the complaint on various grounds, including that the VRAA does not create a private cause of action. The trial court agreed with our argument and dismissed the case. The Virginia Supreme Court has now upheld that decision, finding that “There is no evidence in the record that VDOT ignored or refused to decide Fernandez’s claim for relocation expenses, as he alleges.”
Fernandez tried to argue that because only Section 25.1-417(B) of the VRAA specifically denies the creation of any private right of action, that the Virginia General Assembly intended for the other provisions of the VRAA to include an implied private right of action. The Court concluded, citing similar argument in Osher v. City of St. Louis, 903 F.3d 698, 702-03 (8th Cir. 2018), which VDOT had cited in the trial court and on appeal, that “an express disavowal of rights under one section . . . does not amount to an unambiguous manifestation of intent to create enforceable rights under another.”
The opinion essentially tracks our arguments from the trial court, aside from the last paragraph of the Court’s order where it discusses potential remedies for a situation which categorically did not occur in Fernandez, i.e. a displacing agency that refuses to do anything to provide relocation assistance or benefits. In that situation, the Court noted that there are potential remedies available either under Virginia’s Administrative Procedures Act or through a writ of mandamus. Although the likelihood of having such a fact pattern is rare, if you practice in this area you may want to brush up on your knowledge regarding the APA and the writ of mandamus.
Ross Greene is a shareholder with Pender & Coward, P.C., and also the editor of this blog. In his right-of-way practice, Ross represents condemning authorities, including state government agencies, utilities, municipalities, and right of way consultants.
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