Submitted: June 28, 2018
from United States District Court for the Eastern District of
Missouri - St. Louis
COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.
COLLOTON, CIRCUIT JUDGE
Osher sued the St. Louis Land Clearance for Redevelopment
Authority and the National Geospatial-Intelligence Agency
after the Redevelopment Authority condemned Osher's
property under its power of eminent domain. Osher sought to
enjoin the condemnation proceedings and to obtain relocation
benefits under the Uniform Relocation Assistance and Real
Property Acquisition Policies Act, 42 U.S.C. § 4622. The
district court abstained from deciding Osher's claim
against the Redevelopment Authority and dismissed his claim
against the Agency. We conclude that the Act does not create
a private right of action against the Agency, and that Osher
waived any challenge to the court's abstention decision,
so we affirm.
district court dismissed this case at the pleading stage, so
we take the allegations in Osher's complaint as true. In
2012, the National Geospatial-Intelligence Agency announced
its intention to move its western headquarters in St. Louis
to a new location. To help persuade this employer to remain
in the locale, the City of St. Louis sought to secure an
attractive site for the Agency's new headquarters. The
City's proposed site in north St. Louis included
Osher's property. The St. Louis Land Clearance for
Redevelopment Authority began acquiring property within the
proposed site. After notifying Osher of its intent to procure
his property in December 2015, the Redevelopment Authority
brought a condemnation action in state court.
the state court action was pending, Osher brought suit in the
district court and moved for a temporary restraining order,
preliminary injunction, and permanent injunction against the
condemnation proceedings. He alleged, among other things,
that the Redevelopment Authority and the Agency violated the
Uniform Relocation Assistance and Real Property Acquisition
Policies Act (the "Act"), 42 U.S.C. § 4622, by
failing to pay him the relocation benefits provided by the
Act. Osher sought relief under 42 U.S.C. § 1983.
hearing on the motion, the district court determined that the
parties agreed on the following additional facts. In the
state court proceedings, Osher did not challenge the
Redevelopment Authority's right to condemn his property,
and the Redevelopment Authority took title to the property
after paying the property's fair market value of $810,
000 plus interest. After Osher refused to vacate the
property, the Redevelopment Authority petitioned for a writ
of possession from the state court. By the time of the
hearing in federal court, the state court had granted the
writ of possession and ordered Osher to tender possession of
the property to the Redevelopment Authority immediately.
district court ultimately denied Osher's motion and
dismissed all of his claims. Citing the pending state court
condemnation proceedings, the court abstained from exercising
jurisdiction over Osher's claim against the Redevelopment
Authority under the doctrine of Younger v. Harris,
401 U.S. 37 (1971). The court dismissed Osher's claim
against the Agency on the grounds that § 1983 does not
provide a remedy against a federal agency, and that the Act
does not create a private right of action. Alternatively, the
court concluded that Osher's claim failed on the merits,
because the Act did not apply to the underlying eminent
noticed an appeal on June 16, 2017, "from the final
judgment entered in this matter on May 2, 2017." The
Agency agrees that we have appellate jurisdiction, but the
Redevelopment Authority argues that the notice was untimely.
As timeliness under a statutory deadline is jurisdictional in
a civil appeal, Bowles v. Russell, 551 U.S. 205,
210-13 (2007), we consider the question as to the entire
had "60 days after entry of the judgment or order
appealed" in which to file a notice of appeal. Fed. R.
App. P. 4(a)(1)(B); accord 28 U.S.C. § 2107(b).
The district court's order dismissing the action was
filed December 29, 2016, more than 60 days before he filed
the notice of appeal on June 16, 2017. But because Osher
filed a timely motion for relief from the judgment under
Rules 59 and 60, the time to file his appeal did not begin to
run until the district court disposed of that motion on May
2, 2017. Fed. R. App. P. 4(a)(4)(A)(iv). Osher filed his
notice of appeal within 60 days of May 2, so it is timely.
is a second reason to be confident that Osher's notice of
appeal was timely. "The entry of a judgment triggers the
running of the time for appeal," Jeffries v. United
States, 721 F.3d 1008, 1012 (8th Cir. 2013), and
"[e]very judgment . . . must be set out in a separate
document." Fed.R.Civ.P. 58(a). If the separate document
requirement is not satisfied, however, "then the order
is deemed 'entered' 150 days after the dispositive
order was entered on the civil docket."
Jeffries, 721 F.3d at 1012; see Fed. R.
Civ. P. 58(c)(2). The district court here entered its
dismissal order on December 29, 2016, but never set out the
judgment in a separate document. The ...