FRIENDS OF THE CAPITAL CRESCENT TRAIL, et al. Plaintiffs, v. FEDERAL TRANSIT ADMINISTRATION, et al. Federal Defendants. v. State of Maryland, Defendant-Intervenor.
Civil Case No. 14-01471 (RJL)
United States District Court, District of Columbia.
Signed 11/22/2016
RICHARD J. LEON, United States District Judge
b. DHS‘s Claim that EPIC Engaged in “Careless Errors” and Repetitive Block Billing.
DHS presents a bald assertion that EPIC engaged in “numerous examples of repetitive, block billing.” Def.‘s Opp‘n at 19. EPIC‘s billing records and affidavits provide the Court with sufficiently “contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney.” Nat‘l Ass‘n of Concerned Veterans v. Sec‘y of Defense, 675 F.2d at 1327; see Bill of Fees and Costs, Pl.‘s Ex. G [Dkt. No. 81-9] [Dkt. No. 87-2]; see also Role Models America, Inc. v. Brownlee, 353 F.3d at 975; American Immigration Council v. U.S. Dep‘t of Homeland Security, 82 F.Supp.3d 396, 412 (D.D.C. 2015). DHS has not provided specific evidence to overcome the presumption of reasonableness.
However, in considering the parties’ motions, the Court discovered one instance in which EPIC appears to have double-billed for the work of one attorney. [Dkt. No. 81-9 at p. 7] (including two entries for the participation of Marc Rotenberg in a teleconference on May 21, 2012). As the Court has asked EPIC to submit a revised bill, EPIC will be afforded an opportunity to correct any and all errors present, including the error just identified.
IV. CONCLUSION
For the foregoing reasons, Plaintiff‘s Motion for Attorneys’ Fees shall be granted in part and denied in part. EPIC shall prepare a revised case billing record in accordance with this opinion. In submitting the revised bill, EPIC shall not seek fees for any work not already included in the Bill of Fees and Costs [Dkt. No. 81-9]. Additionally, EPIC shall submit a copy of the original Bill of Fees and Costs, annotated to indicate which specific line-items are no longer being claimed in its revised bill.
Finally, the Government will be provided an opportunity to review EPIC‘s revised bill and present to the Court any line-items that are either clearly erroneous or otherwise inconsistent with this opinion. The Court stresses that this is not an occasion to relitigate any issues raised in the Motion, but simply an opportunity to assist the Court in identifying fees which EPIC may not have reasonably incurred, in light of this Memorandum Opinion.
An Order shall accompany this Memorandum Opinion.
Jeremy Hessler, Kevin W. McArdle, Tyler L. Burgess, United States Department of Justice, Washington, DC, for Federal Defendants.
MEMORANDUM OPINION
RICHARD J. LEON, United States District Judge
Currently before the Court are federal defendants’ Motion to Alter or to Amend the Court‘s Judgment [Dkt. # 99], and defendant-intervenor Maryland‘s Motion to Alter or to Amend the Court‘s Judgment [Dkt. # 98], both filed pursuant to
BACKGROUND
In March 2014, the Federal Transit Administration issued a ROD approving the Purple Line Project, a 16.2-mile light rail project in Montgomery and Prince George‘s Counties, Maryland. Plaintiffs Friends of the Capital Crescent Trail (“FCCT“), John MacKnight Fitzgerald, and Christine Real de Azua (collectively, “plaintiffs“) filed suit in this Court against the FTA, the U.S. Fish and Wildlife Service (“FWS“), the Department of Transportation, and the Department of the Interior (collectively, “federal defendants“).1
In their amended and supplemental complaints, plaintiffs challenge the FTA‘s ROD and related approvals by the FWS under the Administrative Procedure Act,
On August 3, 2016, I granted partial summary judgment to plaintiffs, finding that the FTA wholly failed to consider the significance of WMATA‘s ridership and safety issues when it determined that NEPA regulations did not require the agency to prepare a SEIS for the Purple Line Project. In essence, I concluded that the decision to disregard these safety and ridership issues was arbitrary and capricious under the APA, instructed the defendants to prepare an SEIS as expeditiously as possible, and vacated the Purple Line ROD. See Mem. Op. and Order Granting Partial Summ. J. [Dkts. ## 96, 97.]
Pursuant to
STANDARD OF REVIEW
Although the Court has broad discretion to alter or amend a judgment pursuant to
ANALYSIS
I. The FTA violated the APA when it refused to consider the effect that WMATA‘s safety and ridership issues could have on the Purple Line project.
In my August 3, 2016 Opinion granting partial summary judgment, I held that defendants violated the APA when they “wholly failed to evaluate the significance of the documented safety issues and decline in WMATA ridership” and refused to prepare an SEIS for the Purple Line. Mem. Op. at 7. I reaffirm that decision today. When presented with information about WMATA‘s recent ridership and safety issues, both the FTA and Maryland took the position that WMATA‘s ridership and safety issues had “no relationship to the environmental impacts of the Purple Line.” AR5_000009 (emphasis added); Fed. Defs.’ Mem. in Support of Cross-Mot. for Summ. J at 30 [Dkt. # 55]. But the administrative record flatly contradicts that conclusion. The Purple Line‘s final environmental impact statement (“FEIS“), the very document that plaintiffs want the FTA to supplement, explicitly stated that one of the Purple Line‘s purposes is to “[p]rovide better connections to [WMATA] Metrorail services.” AR1001918. The FEIS explained how the Purple Line will connect with multiple Metrorail stations, included ridership projection data about riders using combined Purple Line/Metrorail transit, and projected that by 2040, 27% of Purple Line boardings “would be trips that also include riding Metrorail.” See, e.g., AR_001927, AR_001973.
As a result, the agencies’ categorical decision not to evaluate the significance of WMATA‘s new safety and ridership issues was arbitrary and capricious. In the Purple Line FEIS, the agencies examined the interconnected relationship between WMATA and the Purple Line, but when presented with new information about WMATA‘s ridership and safety, they changed tack and asserted that no SEIS was required, on the grounds that WMATA and the Purple Line would be separately owned and operated. AR5_00009. This inconsistent (and untenable) position was itself arbitrary, as our Circuit‘s precedent makes clear that “agency action is arbitrary when the agency offer[s] insufficient reasons for treating similar situations differently.” Transactive Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir. 1996).
More importantly, the agencies’ misplaced reliance on the legal distinction between WMATA and Purple Line prevented them from actually evaluating the significance of this new information, and thereby compounded their error. When reviewing an agency‘s decision not to supplement an environmental impact statement, courts are instructed to “carefully review[] the record and satisfy [] themselves that the agency has made a reasoned decision based on its evaluation of the signifi-
II. The Court will amend its judgment and remand to the FTA to make the threshold determination of whether an SEIS is required.
Upon consideration of federal defendants’ and defendant-intervenor‘s motions, I will, however, amend my prior judgment in one limited respect. Rather than directly order the FTA to prepare a full SEIS, I will instead remand to the agency to determine the significance of WMATA‘s ridership and safety issues and determine what level of additional environmental analysis is required by its NEPA regulations. See
Our Circuit Court‘s precedent indicates that the “initial decision whether a supplemental EIS is required should [generally] be made by the agency, not by a reviewing court.” Friends of the River v. Fed. Energy Regulatory Comm‘n, 720 F.2d 93, 109 (D.C. Cir. 1983). In its December 2015 response to plaintiffs, the Maryland Transit Authority stated that the “WMATA-related issues ... provide no basis for preparing an SEIS.” AR5_000009; see also Fed. Defs.’ Mem. in Support of Cross-Mot. for Summ. J at 30 [Dkt. # 55] (adopting the same position). Plaintiffs argue that these statements demonstrate that the FTA already made its “initial decision” about an SEIS and should not receive another opportunity to consider the WMATA-related issues. But the FTA‘s prior position was premised on the erroneous argument that WMATA‘s issue bore no relationship to the Purple Line as a result of their separate ownership. In short, the FTA never examined WMATA‘s issues on the merits or determined their significance—namely, whether they present the “seriously different picture” that would require an SEIS. Nat‘l Comm. for the New River v. Fed. Energy Regulatory Comm‘n, 373 F.3d 1323, 1330 (D.C. Cir. 2004). Nevertheless, I recognize that a significance determination like this is the sort of decision that “requires a high level of technical expertise” that would benefit from the “informed discretion of the responsible federal agencies.” Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976).
In that regard, I find our Circuit Court‘s 1983 decision in People Against Nuclear Energy v. Nuclear Regulatory Comm‘n particularly instructive here. 678 F.2d 222 (D.C. Cir. 1982), rev‘d on other grounds by Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). In that case, a local community group asked the Nuclear Regulatory Commission to consider, under NEPA, the effect that re-opening a nuclear power plant would have on “psychological distress and community deterioration.” Id. at 225. The Commission declined to consider those issues as part of its NEPA
For these reasons, I will remand to the defendants to determine whether WMATA‘s recent ridership and safety issues require an SEIS. In their briefs and proposed orders, both federal defendants and defendant-intervenor Maryland have proposed a schedule whereby the FTA will conduct this assessment as expeditiously as possible, and will submit the final assessment to the Court with a determination as to whether an SEIS is required. See Proposed Order [Dkt. # 98-5], Proposed Order [Dkt. # 99-3]. If the FTA determines that an SEIS is not required, then federal defendants and Maryland will file renewed motions for summary judgment on the limited issue of whether WMATA safety and ridership issues require an SEIS. The court adopts their proposed schedule in the Order accompanying this Memorandum Opinion.
III. The Court will not reinstate the Purple Line ROD.
Lastly, I decline to reinstate the Purple Line ROD because I find that vacatur remains the appropriate remedy in this case (and certainly does not constitute the clear error or manifest injustice that would require me to amend my prior judgment). As I already noted in my August 3, 2016 Opinion, vacatur is the standard remedy for a NEPA violation. Humane Soc‘y of U.S. v. Johanns, 520 F.Supp.2d 8, 37 (D.D.C. 2007) (“Pursuant to the case law in this Circuit, vacating a rule or action promulgated in violation of NEPA is the standard remedy.“); see also Am. Bioscience v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001) (“If an appellant ... prevails on its APA claim, it is entitled to relief under that statute, which normally will be ... vacatur....“)
While it is true that a reviewing court has the discretion to remand an agency decision without vacatur, in determining whether to do so, the Court must consider the “seriousness of the order‘s deficiencies” and the potentially disruptive consequences that could flow from vacatur. Allied-Signal v. Nuclear Regulatory Comm‘n, 988 F.2d 146, 150-51 (D.C. Cir. 1993). Indeed, I evaluated and applied those very factors when I vacated the ROD in my original Opinion and Order granting partial summary judgment. After considering the additional information provided by federal defendants and defendant-intervenor Maryland in their
With respect to the first Allied-Signal factor, I point to the defendants’ seemingly cavalier attitude towards WMATA‘s safety and ridership issues. Although the Purple Line‘s FEIS examined the close connection between WMATA and the Purple Line, the FTA and Maryland summarily disregarded new information about WMATA‘s safety and ridership numbers on the inexplicable grounds that no such WMATA-Purple Line connection existed. The seriousness of this deficiency is underscored by the size, scope, and cost of this major infrastructure project. Nevertheless, this does not itself require vacatur, as it remains possible that the agency will carefully assess these issues on remand and determine that a full SEIS is not in fact required by the agency‘s regulations. See Heartland Reg‘l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009) (“When an agency may be able readily to cure a defect in its explanation of a decision, the first factor in Allied-Signal counsels remand without vacatur.“)
In the final analysis, it is my consideration of the second Allied-Signal factor that compels my decision to vacate the Purple Line ROD. As federal defendants and defendant-intervenor Maryland explained in their
CONCLUSION
For all of the reasons stated above, the Court DENIES IN PART and GRANTS IN PART federal defendants’ Motion to Alter or to Amend the Court‘s Judgment [Dkt. # 99] and defendant-intervenor Maryland‘s Motion Pursuant to Alter or to Amend the Judgment [Dkt. # 98]. An Order consistent with this decision accompanies the Memorandum Opinion.
Ari BAILEY, Petitioner, v. David EBBERT, et al., Respondents.
Civil Action No. 15-2072 (RJL)
United States District Court, District of Columbia.
Signed November 21, 2016
Filed 11/22/2016