United States District Court, E.D. Wisconsin
ORDER GRANTING SUMMARY JUDGMENT
William C. Griesbach, Chief Judge United States District
Ronald DeCoster brought this action against Defendants
Waushara County and the Waushara County Highway Department
(collectively “the County”) seeking compensation
for litigation costs and expenses, including attorney's
fees, incurred in connection with an alleged taking of his
property by the County. DeCoster asserts his claim for
compensation under the Uniform Relocation Assistance,
Acquisition and Real Property Policies Act of 1970 (the
“URA”), 42 U.S.C. § 4601, et seq.,
as well as 49 C.F.R. § 24.107 and Wis.Stat. §
32.19(3)(d). He also seeks damages under 42 U.S.C. §
1983. The court has jurisdiction under 28 U.S.C. § 1331.
The case is before the court on the County's motion for
summary judgment. For the reasons that follow, the
County's motion will be granted and the case dismissed.
and his wife, Nicole, own land located at ¶ 6190 County
Road I in Fremont, which is in Waushara County, Wisconsin.
DeCoster Aff. ¶ 1, ECF No. 21. In the fall of 2009, the
Wisconsin Department of Transportation (WisDOT) authorized a
reconstruction project on County Trunk I. Def.'s Proposed
Material Facts (DPMF) ¶ 1, ECF No. 18 (citing Compl.
¶ 8, ECF No. 1). The reconstruction project relied
largely on funding from the federal government, although
WisDOT also contributed some funds for the project costs.
Id. ¶ 2 (citing Compl. ¶ 10). Part of the
project included reconstruction of a highway bridge over
Alder Creek, which runs east to west and cuts across the
DeCosters' property. Id. ¶ 3 (citing Compl.
¶ 12). Because the bridge was adjacent to the
DeCosters' property, the reconstruction projected
affected a parcel of their property containing approximately
300 feet of fencing. Id. ¶ 5; Compl. ¶ 16;
Pl.'s Statement of Facts (PSF) ¶¶ 4-5, ECF No.
County believed that the fence encroached four feet onto the
highway right of way, but DeCoster maintained that it was
properly on his property. DPMF ¶¶ 5-6; PSF ¶
5. When the County asked DeCoster to apply for a revocable
occupancy permit, which would have allowed the fence to
remain in place subject to removal if necessary, DeCoster
declined the request. DPMF ¶¶ 7-8; PSF ¶ 7.
Subsequently, the County issued an order under Wis.Stat.
§ 83.01(7)(f) to remove the fence. DPMF ¶ 9.
DeCoster refused to comply with the order, so the County
commenced an action in the Waushara County Circuit Court to
secure removal under Wis.Stat. § 86.04. DPMF
¶¶ 9-10 (citing Compl. ¶ 17). The DeCosters
filed a counterclaim for inverse condemnation. Id.
¶ 11 (citing Compl. ¶ 18).
January 2013, the circuit court approved a stipulation
between the DeCosters and the County. See Stip., ECF
No. 1-1 at 7-9. Under the stipulation, the County agreed to
pay the DeCosters $7, 948.24 in exchange for a quitclaim deed
to two parcels of land. Stip. ¶ 1. Although the County
expressly maintained that no taking had occurred, it also
agreed that the court could treat its acquisition of the
property as a taking for the limited purpose of determining
whether the DeCosters could recover their litigation expenses
under Wis.Stat. § 32.28. Stip. ¶ 2. DeCoster
provided the County with the quitclaim deed in May 2013, and
the County now owns the disputed parcel. DPMF ¶ 15
(citing Compl. ¶ 20).
subsequent litigation regarding their efforts to recover
their litigation expenses, the DeCosters sought a $110, 000
reimbursement. Compl. ¶ 21. After holding an evidentiary
hearing and considering post-hearing briefing, the circuit
court issued an extensive memorandum decision in December
2013 awarding litigation expenses of $31, 560.91 to the
DeCosters. DPMF ¶¶ 17-18; Compl. ¶ 21; see
also ECF No. 17 at 9-58. The circuit court reasoned that
the DeCosters' litigation expenditures were reasonable
through April 2011-when the County offered a settlement
similar to the ultimate stipulated sale amount-but all
subsequent expenses incurred were not. ECF No. 17 at 43.
After the circuit court entered judgment in January 2014, the
DeCosters appealed, but the Wisconsin Court of Appeals
affirmed the circuit court's decision and the Wisconsin
Supreme Court denied their petition for review. DPMF
¶¶ 19-21 (citing Compl. ¶ 22). The County
ultimately issued a check to the DeCosters for $31, 560.91,
but the DeCosters have not cashed that check. Id.
¶ 22 (citing Compl. ¶ 24).
judgment is appropriate when the moving party shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). All reasonable inferences are construed
in favor of the nonmoving party. Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit
evidentiary materials that set forth specific facts showing
that there is a genuine issue for trial.” Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (quoted
source and internal quotation marks omitted). “The
nonmoving party must do more than simply show that there is
some metaphysical doubt as to the material facts.”
Id. Summary judgment is properly entered against a
party “who fails to make a showing sufficient to
establish the existence of an element essential to the
party's case, and on which that party will bear the
burden of proof at trial.” Parent v. Home Depot
U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012)
(internal quotation mark omitted) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)).
serves the express purpose of “establish[ing] a uniform
policy for the fair and equitable treatment of persons
displaced as a direct result of programs or projects
undertaken . . . with Federal financial assistance.” 42
U.S.C. § 4621(b). The URA accomplishes this goal, at
least in part, by providing that the head of a federal agency
may not approve the use of federal financial assistance by an
acquiring state agency without receiving assurances that
property owners will be reimbursed for necessary expenses as
provided for in 42 U.S.C. §§ 4653 and 4654. 42
U.S.C. § 4655(a)(2). As relevant here, § 4654(a)
provides that an agency acquiring real property “shall
award the owner of any right, or title to, or interest in,
such real property such sum as will in the opinion of the
court reimburse such owner for his reasonable costs,
disbursements, and expenses, including reasonable
attorney, appraisal, and engineering fees, actually
incurred because of the condemnation proceedings.”
(Emphasis added.) In turn, 49 C.F.R. § 24.107(c)
clarifies that “[t]he owner of the real property shall
be reimbursed for any reasonable expenses, including
reasonable attorney, appraisal, and engineering fees, which
the owner actually incurred because of a condemnation
proceeding, if . . . [t]he Agency effects a settlement of
such proceedings.” Wisconsin law expressly incorporates
these URA provisions into state condemnation law, providing
that, “in the case of a program or project receiving
federal financial assistance, a condemnor shall . . . make
any additional payment required to comply with the federal
[Uniform Act], 42 USC. 4601 to 4655, and any regulations
adopted thereunder.” Wis.Stat. § 32.19(3).
does not provide for an express private right of action that
would permit DeCoster to proceed against the County on a
claim for litigation expenses. See Delancey v. City of
Austin, 570 F.3d 590, 593 n.4 (5th Cir. 2009).
Consequently, DeCoster's assertion that the County failed
to pay his reasonable litigation expenses turns upon whether
the URA created an implied private right of action that would
allow him to proceed on a claim for damages under 42 U.S.C.
§ 1983. Critically, “[i]n order to seek redress
through § 1983, . . . a plaintiff must assert the
violation of a federal right, not merely a violation
of federal law.” Blessing v.
Freestone, 520 U.S. 329, 340 (1997). An evaluation of
three factors can assist the court in determining whether a
federal statute creates a private right enforceable under
First, Congress must have intended that the provision in
question benefit the plaintiff. Second, the plaintiff must
demonstrate that the right assertedly protected by the
statute is not so “vague and amorphous” that its
enforcement would strain judicial competence. Third, the
statute must unambiguously impose a binding obligation on the
States. In other words, the provision giving rise to the
asserted right must be couched in mandatory, rather than
BT Bourbonnais Care, LLC v. Norwood, 866 F.3d 815,
820 (7th Cir. 2017) (quoting Blessing, 520 U.S. at
340-41). These factors, however, “set the bar high,
” as “nothing ‘short of an unambiguously
conferred right [will] support a cause of action brought
under § 1983.'” Planned Parenthood ofInd., Inc. v. Comm'r of Ind. State Dep't of
Health, 699 F.3d 962, 968 (7th Cir. 2012) (alteration in
original) (quoting Gonzaga University v. Doe, 536
U.S. 273, 283 (2002)). “Accordingly, where the text and
structure of a statute provide no indication that Congress
intends to create new individual ...