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(11th Cir. 1987).12 Unfortunately for him, Fox did neither. Instead, he brought an inverse
condemnation claim that requires a showing of “public use.” So, to the extent Fox now
lacks a remedy, it is not because Virginia law is harsh; it is because he failed to timely
pursue the available remedies.
Last, Fox lobs only conclusory allegations about pretext. According to Fox, Norfolk
is out of land after almost 300 years of development and is therefore scheming to redevelop
private property for tax revenue. But Fox offers no evidence to support this argument. A
“genuine” dispute of fact exists at summary judgment if “the evidence presented would
allow a reasonable factfinder to find for the nonmovant.” Bhattacharya, 93 F.4th at 686.
The dearth of any pretext evidence prevents a reasonable factfinder from finding for Fox.13
12
Without analyzing potential immunity defenses, he also could have sued the
officer who took the property in tort. See AGCS, 800 S.E.2d at 164.
13
Fox raises three other issues that require little attention. First, Fox contends a jury
must assess the value of the house. But the compensation owed is material only if a plaintiff
establishes a valid inverse condemnation claim, which Fox does not. Second, Fox argues
that Virginia law provides a right to try an inverse condemnation action to a jury. Even if
Fox did not forfeit this argument by raising it for the first time in his motion to reconsider,
see Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999), summary
judgment does not infringe one’s right to a jury trial, see Barber v. Kimbrell’s, Inc., 577
F.2d 216, 221 n.12 (4th Cir. 1978). Finally, Fox argues that the 2012 Constitutional
Amendment designated private property ownership as a “fundamental right,” so strict
scrutiny must apply. But even if Fox did not forfeit this issue by raising it for the first time
in his reply brief—and he probably did—the Supreme Court of Virginia rejected a similar
“fundamental rights” argument in Palmer, 801 S.E.2d at 420.
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