                              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.
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.




                               2
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.

                                                 3
     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.


                                            4
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.



                                          5
      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

                                            6
[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

                                              7
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.


                                         8
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


                                                   9
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:



                                         10
     [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


                                     11
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.



                                              12
       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.



                                            13
                                            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.

                                           14
       §§ 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

                                       15
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.




                                      16
