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BOYD v. BROWNER

August 9, 1995

DOROTHY BOYD et al., Plaintiffs,
v.
CAROL BROWNER, Administrator UNITED STATES ENVIRONMENTAL PROTECTION AGENCY et al., Defendants.


James Robertson, United States District Judge


The opinion of the court was delivered by: JAMES ROBERTSON

In 1992, some eighty African-American homeowners living on a tract of chemically contaminated land in Texarkana, Texas, sold their residences to the United States Army Corps of Engineers, which was acting as agent for the Environmental Protection Agency. The homeowners also accepted government relocation assistance. The homeowners, now plaintiffs, claim in this action that the Government threatened and coerced them so that they sold their houses for too little money and accepted too little in relocation payments. They compare their treatment with that given to the inhabitants of seven white communities acquired by the EPA in similar circumstances and claim that they were discriminated against on the basis of their race.

 Plaintiffs assert that defendants acted arbitrarily and capriciously and abused their discretion in violation of the Administrative Procedure Act, 5 U.S.C. § 706; that defendants made inadequate relocation payments in violation of the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. §§ 4621, 4623; and that defendants violated their Fifth Amendment rights and the Fair Housing Act, 42 U.S.C. § 3604 et seq. They seek rescission of their sales agreements and additional compensation. Before the Court is defendants' motion to dismiss or for summary judgment. Plaintiffs have filed a cross-motion for partial summary judgment. For the reasons stated below, and upon review of the entire record, defendants' motion for summary judgment will be granted.

 Facts

 The Corps of Engineers was EPA's agent for appraising and acquiring Carver Terrace properties and arranging the relocation of residents. EPA instructed the Corps to appraise the properties as if they were uncontaminated and to pay "clean value" or pre-contamination value for them. Carver Terrace residents were informed that the appraisers would disregard the fact that the homes were sited on contaminated property.

 The Corps made purchase offers to Carver Terrace landowners by means of hand-delivered letters. Each letter stated that an appraisal had been made and set forth the value assigned by the Corps as a result of that appraisal. Each letter also contained the following language:

 
Your property is being acquired on behalf of the EPA. If we are unable to negotiate a direct purchase from you, it will be necessary to acquire the property through condemnation proceedings. This information is not to be considered a threat, but in our opinion, it is necessary that we provide it to you so that you are fully informed of the laws and procedures applicable to this acquisition program. Please be assured that we will make every effort to negotiate a fair settlement with you. Should it be necessary to acquire your property through condemnation proceedings, the property will be reappraised. The Department of Justice, who will represent the United States, has directed that the reappraisal be based on the value of the property its actual condition, which would necessitate consideration of the fact that the property is located within an environmentally unsafe area. This, in all probability, would lower the appraised value of your property.

 Plaintiffs assert that they understood this language as threatening. That assertion of their understanding -- as distinct from the Corps' intent -- is accepted as true for purposes of this motion, as are all of plaintiffs' allegations of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Washington Post Co. v. United States Dept. of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). Thus, it is also accepted as true that, from 1978 to 1994, the EPA relocated at least seven non-minority communities exposed to hazardous chemicals *fn2" and that offer letters sent to residents of those communities were substantially similar to those used at Carver Terrace except that they did not advise homeowners that the properties would have to be condemned based on their contaminated value if negotiations failed. Three of those seven acquisitions were performed by the Federal Emergency Management Agency. The Corps of Engineers conducted and wrote the buyout letters for the other four. Oral statements about condemnation were allegedly made at Times Beach location but were withdrawn when protested.

 Claim for Judicial Review

 Plaintiffs' claim for judicial review under the APA is that the offer letters violated Congress' intent that the Carver Terrace owners receive "clean value" for their homes. In order to sustain that position, however, plaintiffs must first point to some "final agency action." They cannot do so here.

 Even if the letters amounted to final agency action (ruling that fair market value rather than "clean value" would be paid in condemnation proceedings), plaintiffs have not shown that such a ruling would have been unlawful. The condemnation process does measure "just compensation" by fair market value. See, United States v. Fifty Acres of Land, 469 U.S. 24, 25-26, 83 L. Ed. 2d 376, 105 S. Ct. 451 (1984); United States v. Miller, 317 U.S. 369, 373-74, 87 L. Ed. 336, 63 S. Ct. 276 (1943); Reservation Eleven Associates v. District of Columbia, 136 U.S. App. D.C. 311, 420 F.2d 153, 155 (D.C. Cir. 1969) (measure of compensation that must be paid in eminent domain suit is fair market value of property being condemned at time just prior to taking); Goddard v. D.C. Redevelopment Land Agency, 109 U.S. App. D.C. 304, 287 F.2d 343, 345 (D.C. Cir.), cert. denied 366 U.S. 910, 6 L. Ed. 2d 235, 81 S. Ct. 1085 (1961) (if plaintiffs do not receive just compensation in condemnation proceedings, their remedy is to appeal). Plaintiffs concede that "the statute and legislative history [of the Appropriations Act] do not discuss whether the amount paid for the properties should be pre- or post- contamination value ..." in the condemnation context, or for that matter, for negotiated acquisitions. (Plaintiffs' Memorandum at 14-15). Congress made no provision as to value, as it did when it decided to acquire property at Love Canal. *fn3" Instead, Congress simply appropriated funds for relocation:

 
. . . notwithstanding any other provision of law, the Administrator of the Environmental Protection Agency shall, from funds previously appropriated under this heading in Public Law 101-507, obligate up to $ ...

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