     13-4161-cv
     National Railroad Passenger Corporation v. McDonald

 1                        UNITED STATES COURT OF APPEALS

 2                            FOR THE SECOND CIRCUIT

 3                               August Term, 2014

 4   (Argued: August 27, 2014                     Decided: February 24, 2015)

 5                             Docket No. 13-4161-cv

 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

 7   NATIONAL RAILROAD PASSENGER CORPORATION,

 8         Plaintiff-Appellant,

 9         v.

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

14   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

15   Before:    WINTER, RAGGI, and CARNEY, Circuit Judges.

16         Appeal from a judgment of the United States District Court

17   for the Southern District of New York (Colleen McMahon, Judge),

18   denying appellant’s motion for summary judgment on the ground

19   that New York’s taking of appellant’s land by eminent domain was

20   barred by federal law and granting appellee’s motion for summary

21   judgment on grounds of Eleventh Amendment immunity and statute of

22   limitations.    We affirm on statute-of-limitations grounds.

23                                       KATHLEEN M. SULLIVAN (Christopher
24                                       E. Kulawik, on the brief), Quinn
25                                       Emanuel Urquhart & Sullivan, LLP,


                                                           1
 1                                  New York, NY, for Plaintiff-
 2                                  Appellant.
 3
 4                                  CECELIA C. CHANG, Special Counsel
 5                                  (Barbara D. Underwood, Solicitor
 6                                  General, Andrew W. Amend & Mark H.
 7                                  Shawhan, Assistant Solicitors
 8                                  General, of counsel), on the brief
 9                                  for Eric T. Schneiderman, Attorney
10                                  General of the State of New York,
11                                  for Defendant-Appellee.
12
13   WINTER, Circuit Judge:
14
15        The National Railroad Passenger Corporation (“Amtrak”)

16   appeals from Judge McMahon’s grant of summary judgment dismissing

17   its federal Supremacy Clause claims brought against Joan

18   McDonald, Commissioner of the New York State Department of

19   Transportation (the “Commissioner”).     Amtrak’s complaint claimed

20   that, in light of federal statutes that organize and regulate

21   Amtrak, the Supremacy Clause of the United States Constitution

22   deprived the New York State Department of Transportation

23   (“NYSDOT”) of authority to condemn Amtrak’s property by eminent

24   domain.   Because Amtrak brought its federal claims more than six

25   years after its claims accrued, the action was time-barred.    We

26   therefore affirm.

27                               BACKGROUND

28        The relevant facts are undisputed.

29        Amtrak is a private corporation created by the Rail

30   Passenger Service Act of 1970, 49 U.S.C. § 24101 et seq., to

31   operate intercity commuter rail service throughout the United


                                      2
 1   States.   See 49 U.S.C. §§ 24101(a); 24301(a)(2).      In furtherance

 2   of its objectives, Amtrak owns and uses real property, much of

 3   which was conveyed to it pursuant to the Regional Rail

 4   Reorganization Act of 1973.   See 45 U.S.C. § 701 et seq.

 5        The NYSDOT is currently engaged in a project called the

 6   Bronx River Greenway, involving joint federal and state efforts

 7   to convert a 23-mile-long stretch of land along both sides of the

 8   Bronx River into urban parkland.       Part of the planned Greenway

 9   adjoins Amtrak’s Northeast Corridor rail lines.      In the course of

10   carrying out the project, NYSDOT determined that it needed to

11   build on several parcels of land owned by Amtrak.      The

12   Commissioner sought to acquire the land by eminent domain under

13   the authority given her by the New York State Highway Law, N.Y.

14   High. Law §§ 22, 30 (McKinney 2004), and the Eminent Domain

15   Procedure Law (“EDPL”), N.Y. Em. Dom. Proc. Law § 101 et seq.

16   (McKinney 2004).

17        Before resorting to eminent domain, NYSDOT contacted Amtrak

18   and attempted to negotiate the purchase of the land and easements

19   it needed.   As a result, beginning in 2001, NYSDOT and Amtrak

20   communicated for several years about the Greenway project’s need

21   for the land in question.   However, a stalemate resulted.

22   Although Amtrak was willing to sell the land to New York, it

23   demanded indemnification from all potential environmental cleanup

24   liability and the right to pre-approve NYSDOT’s entering and


                                        3
 1   working on the land.   NYSDOT did not make the desired

 2   concessions.

 3        In April 2005, NYSDOT began proceedings under the EDPL to

 4   condemn the properties.    In accordance with EDPL §§ 202-203,

 5   NYSDOT published notices of a public hearing.   It also notified

 6   Amtrak officials that the hearing would occur on May 19, 2005.

 7   On May 11, 2005, Roger Weld, a NYSDOT employee, called and

 8   emailed a regional Amtrak official, Earl Watson, and notified him

 9   of the hearing.    Watson, in turn, forwarded the NYSDOT email to

10   the Amtrak personnel with authority to act in eminent domain

11   cases, namely the Project Director of Real Estate Development --

12   Sheila Sopper -- and the legal department.    However, NYSDOT’s

13   EDPL-mandated notice was sent to an erroneous address for Amtrak,

14   not at the statutory address where Amtrak is to receive service

15   of process.    See 49 U.S.C. § 24301(b); N.Y. Em. Dom. Proc. Law §§

16   202-03.

17        On May 19, 2005, NYSDOT held the public hearing as

18   scheduled.    No one from Amtrak attended, and Amtrak did not

19   submit written comments.    Subsequently, on August 17, 2005,

20   NYSDOT published the determinations and findings necessary for

21   condemnation of the land.   See N.Y. Em. Dom. Proc. Law § 204.

22   Amtrak could have challenged the condemnation under the EDPL’s

23   judicial review provision, see id. § 207, but did not.    As it

24   conceded at oral argument, it could also have brought the present

                                       4
 1   action.   Instead, from 2005 through 2008, it continued to discuss

 2   the Greenway project with NYSDOT.

 3         Meanwhile, in 2007 and 2008, NYSDOT sent Amtrak notice that

 4   it planned to condemn six parcels and made an offer of

 5   compensation.     On February 19, 2008, the Commissioner filed

 6   notices of appropriation and maps with the county clerk.             When

 7   those documents were filed, title to the land vested in New York

 8   state.    Id. § 204; see id. § 402(A)(3).        A year and a half later,

 9   on August 13, 2009, Sopper sent NYSDOT “agreement of sale”

10   documents that proposed to sell the land and easements for the

11   same price as the compensation proffered by NYSDOT but also

12   provided for Amtrak’s pre-approval of construction and for

13   indemnification for environmental liability.           On August 28, 2009,

14   NYSDOT responded that it had already acquired title to the

15   parcels by eminent domain.       Nearly two and a half years later, on

16   April 9, 2012, Amtrak brought the present action claiming that

17   the takings were invalid under the Supremacy Clause as expressly

18   or impliedly preempted by federal law.          Joint App. at 8-22.1

19         The district court held that Amtrak’s Supremacy Clause

20   claims against the Commissioner were barred under the Eleventh

21   Amendment.    Nat’l R.R. Passenger Corp. v. McDonald, 978 F. Supp.

22   2d 215, 245 (S.D.N.Y. 2013).        Alternatively, it held them time-


           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.



                                           5
 1   barred, because Amtrak brought suit over six years after it knew

 2   or should have known that it had a claim.       Id. at 242 & n.1.     We

 3   affirm on statute-of-limitations grounds.

 4                                 DISCUSSION

 5        We review de novo whether the Commissioner was entitled to

6    summary judgment.    See, e.g., Terry v. Ashcroft, 336 F.3d 128,

7    137 (2d Cir. 2003).   Summary judgment is appropriate only where

8    there are no issues of material fact and the movant is entitled

 9   to judgment as a matter of law.       Id.   We may affirm on any ground

10   with support in the record.    McElwee v. County of Orange, 700

11   F.3d 635, 640 (2d Cir. 2012).

12        As noted, the district court proffered alternative

13   rationales for dismissing Amtrak’s claims:       sovereign immunity

14   under the Eleventh Amendment and the time-bar of the relevant

15   statute of limitations.   Nat’l R.R. Passenger Corp., 978 F. Supp.

16   at 235, 242 & n.1.

17        The Eleventh Amendment bars suits against a state in federal

18   court unless that state has consented to the litigation.       See

19   Papasan v. Allain, 478 U.S. 265, 276-77 (1986); Pennhurst State

20   Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).       An exception

21   exists for suits against state officers alleging a violation of

22   federal law and seeking injunctive relief that is prospective in

23   nature.   See Edelman v. Jordan, 415 U.S. 651, 675-77 (1974);

24   accord Va. Office for Protection & Advocacy v. Stewart, 131 S.


                                       6
 1   Ct. 1632, 1639 (2011).    If   appellee is entitled to Eleventh

 2   Amendment immunity, we would lack jurisdiction.    See McGinty v.

 3   New York, 251 F.3d 84, 100 (2d Cir. 2001); see also Woods v.

 4   Rondout Valley Central Sch. Dist. Bd. of Educ., 466 F.3d 232, 238

 5   (2d Cir. 2006).    Ordinarily, therefore, we would reach this issue

 6   first.

 7            However, Eleventh Amendment immunity “is a privilege which

 8   may be waived.”    Gunter v. Atl. Coast Line R.R. Co., 200 U.S.

9    273, 284 (1906); see Gardner v. New Jersey, 329 U.S. 565, 574

10   (1947); Clark v. Barnard, 108 U.S. 436, 447 (1883).     Also, we

11   have discretion to dispose of a case on a non-merits issue before

12   considering a jurisdictional question.

13        Because one of the parcels is not subject to sovereign

14   immunity, see Note 1, supra, the statute of limitations issue has

15   to be resolved.    The district court held that Amtrak’s Supremacy

16   Clause preemption claim as to the seventh parcel, see note 1,

17   supra, was time-barred under New York’s six-year catch-all

18   limitations period, N.Y. C.P.L.R. § 213(1) (McKinney 2004), and,

19   by footnote, that its claims as to the six parcels already

20   condemned were accordingly barred for the same reason.    Nat’l

21   R.R. Passenger Corp., 978 F. Supp. 2d at 242 & n.1.

22            At oral argument, recognizing that the limitations issue

23   was dispositive as to all the parcels, the state urged us to

24   exercise our discretion to reach the statute-of-limitations issue


                                        7
 1   without deciding whether the suit is barred by sovereign

 2   immunity.   See Tr. of Oral Arg. at 21:2-7.    In view of our

 3   disposition of the limitations issue, we may treat the state’s

 4   suggestion as a waiver of the immunity issue for purposes of this

 5   appeal.

 6        The parties disagree as to the relevant statute of

 7   limitations.   The Commissioner urges upon us the 30-day appeal

 8   period under EDPL § 207 or, alternatively, the three-year period

 9   applicable to Bivens actions.    Kronisch v. United States, 150

10   F.3d 112, 123 (2d Cir. 1998).   Amtrak argues for a six-year

11   period based on Niagara Mohawk Power Corp. v. FERC, 162 F. Supp.

12   2d 107, 137-38 (N.D.N.Y. 2001), aff’d, 306 F.3d 1264 (2d Cir.

13   2002).    We need not resolve this dispute because Amtrak had

14   notice of its claims well before April 9, 2006, the date six

15   years before it filed the present action on April 9, 2012.      The

16   action is, therefore, barred even if the six-year limitations

17   period applies.

18        Amtrak argues that various deficiencies in the NYSDOT’s

19   giving of notice of the eminent domain proceedings prevented the

20   limitations period from beginning to run.     For example, NYSDOT

21   failed to give Amtrak formal notice strictly according to the

22   procedures of the EDPL and did not serve Amtrak at the address

23   referenced in 49 U.S.C. § 24301(b).   But full compliance with

24   formal notice requirements is not necessarily the trigger


                                       8
 1   beginning the relevant limitations period.      See, e.g., Veltri v.

 2   Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 326 (2d Cir. 2004)

 3   (declining to establish “mechanical rule that failure to notify a

 4   claimant of her right to bring an action in court automatically

 5   tolls the statute of limitations”).      Rather, Amtrak’s claims

 6   accrued -- and the limitations clock started running -- when

 7   Amtrak had reason to know of its injury.

 8        “Under federal law, a cause of action generally accrues

 9   ‘when the plaintiff knows or has reason to know of the injury

10   that is the basis of the action.’”      M.D. v. Southington Bd. of

11   Educ., 334 F.3d 217, 221 (2d Cir. 2003) (quoting Leon v. Murphy,

12   988 F.2d 303, 309 (2d Cir. 1993)).      We do not pause to determine

13   the precise date on which NYSDOT knew, or had reason to know,

14   because both possible dates are well beyond six years from the

15   date this action was brought.   In 2005, when Weld sent the email

16   informing Amtrak that NYSDOT would hold a May 2005 public hearing

17   on the subject of condemning Amtrak’s land, Amtrak arguably had

18   reason to know of the alleged Supremacy Clause violation that is

19   the basis of its present claim.       Eminent domain proceedings cloud

20   title, and Amtrak concedes that it suffered not merely potential,

21   but actual injury once its property became the subject of EDPL

22   proceedings.   At the very latest, Amtrak had notice of this harm

23   in August 2005, when NYSDOT announced its findings.      See Didden

24   v. Village of Port Chester, 173 F. App’x 931, 933 (2d Cir. 2006)


                                       9
 1   (summary order).     Accordingly, Amtrak had actual notice more than

 2   six years before it filed its lawsuit.

 3         Amtrak argues that it suffered two separate injuries:             the

 4   first when it learned that NYSDOT planned to take its land, and

 5   the second in 2008, when the Commissioner actually executed the

 6   takings.    However, the completion of the takings was merely the

 7   final act of the intrusion on Amtrak’s alleged Supremacy Clause

 8   rights that accrued in 2005 at the outset of the condemnation

 9   proceedings.    See City of Plattsburgh v. Weed, 945 N.Y.S. 2d 812,

10   813 (App. Div. 3d Dep’t 2012) (exercise of eminent domain is a

11   single “two-step process under the EDPL”).          It would make no

12   sense to begin a limitations period -– or restart it –- when

13   title to the real estate actually vests in the state, an act that

14   occurs only after notice to interested parties and the requisite

15   findings have been made.       Indeed, Amtrak’s proposed rule would

16   leave the validity of a condemnation of its property in doubt for

17   some six years after title has passed.          Common sense, not to

18   mention the record of Amtrak’s failure to take any of the obvious

19   protective measures, directs otherwise.2         The limitations period,

20   therefore, did not reset when NYSDOT took formal title in 2008.


           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.” See Tr.
     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.



                                           10
 1        Similarly, the takings are not an “ongoing violation” of

 2   federal law.   Once title vested in New York, the state acquired

 3   the right to use the land by virtue of its title.   What Amtrak

 4   considers an “ongoing violation” -- New York’s entry onto and use

 5   of the land -- is not even a violation of the law, because New

 6   York has legal title to it.   To hold otherwise would toll the

 7   statute of limitations indefinitely for eminent domain challenges

 8   by Amtrak.

 9                                  CONCLUSION

10        Amtrak’s injury accrued at the very latest when the state

11   announced its findings.   See Didden, 173 F. App’x at 933.   The

12   judgment of the district court is, therefore, affirmed.

13




                                     11
