Petition for Writ of Certiorari — Druid Hills Civic Ass'n v. Federal Highway Administration
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Sn JOSEPH F. SPANOL, JR.
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In The
Supreme Court of the United States
October Term, 1988
i)
DRUID HILLS CIVIC ASSOCIATION, INC., et al.,
Petitioners,
Vv.
THE FEDERAL HIGHWAY ADMINISTRATION,
et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
co)
Davin F. WaALBERT
Wa Bert & HERMANN
100 Peachtree Street
Suite 500
Atlanta, GA 30303
404/523-5000
TO
COCKLE LAW BRIEF Age fT hg co. (800) 225-6964
or call collect (402) 3 42-2831
&
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QUESTIONS PRESENTED
1. Whether the Administrative Procedure Act and
the case or controversy requirement of Article III pro-
hibit a federal court from reviving a prior case, at the
request of an administrative agency, for the sole purpose
of reviewing a new administrative decision of that agency
where no aggrieved person has challenged the decision and
there is no willing litigant to oppose the agency’s position.
2. Whether plaintiffs may be denied a motion to
voluntarily dismiss their complaint under Fed. R. Civ. P.
41(a)(2) where the opposing party would suffer no legal
or other prejudice whatsoever if the motion were granted.
3. Whether a district court may, upon the filing of
a motion for summary judgment by one party, simultan-
eously rule that the opposing party shall be allowed no
discovery with regard to the motion, disregard entirely
the opposing party’s affidavit pursuant to Fed. R. Civ. P.
56(f), and, at the same time, enter summary judgment on
the merits without affording the opposing party any op-
portunity to respond to the motion for summary judgment.
4. Whether plaintiffs are prevailing parties for costs
and fees purposes in an action under the Administrative
Procedure Act where they have successfully established
that an administrative decision was insufficient and il-
legal so that, if the proposed administrative action were
to ever go forward, a new administrative decision and
record would be necessary.
ii
LIST OF PARTIES
The parties to the proceedings below were the peti-
tioners Druid Hills Civic Association, Inc., Inman Park
Restoration, Inc., Candler Park Neighborhood Organiza-
tion, Caution, Inc., Jack Boozer, Phyllis Schwartz, John T.
Juricek, Neil C. Moran, William E. McMurry, and Quinn
Hudson. The corporate petitioners have no parent com-
panies, subsidiaries, or affiliates to list pursuant to Rule
28.1.
The parties below also were respondents The Federal
Highway Administration, United States Department of
Transportation, R. A. Barnhart, D.J. Altobelli, Thomas D.
Moreland, Georgia Department of Transportation, United
States Environmental Protection Agency, Carl J eter, and
The United States of America.
ill
TABLE OF CONTENTS
Page
oe Be BPN ey 8 24 Scan vi
ET EN 1
EER EE 1
CONSTITUTIONAL PROVISIONS AND
STAT ee Inoue TT. 2
STATEMent OF THE CASE ££... 2
Proceedings Below ..........ccccceccecccceeene Bk ies a 2
ELE TIES OT ET 3
REASONS FOR GRANTING THE WRIT .... 6
I. THE ELEVENTH CIRCUIT’S OPINION
THAT ALLOWS A FEDERAL COURT TO RE-
VIVE A PRIOR CASE, SOLELY AT THE RE-
QUEST OF AN ADMINISTRATIVE AGEN-
CY, FOR THE PURPOSE OF REVIEWING
A NEW ADMINISTRATIVE DECISION OF
THAT AGENCY THAT HAS NOT BEEN
CHALLENGED BY ANY AGGRIEVED PER-
SON, DISREGARDS THE CASE OR CONTRO-
VERSY REQUIREMENT OF ARTICLE III,
THE REQUIREMENTS OF THE ADMINIS-
TRATIVE PROCEDURE ACT, AND PREVI-
OUS DECISIONS OF THIS AND OTHER
Se as tee
6
iv
TABLE OF CONTENTS—Continued
Page
Il. THE ELEVENTH CIRCUIT’S DECISION
ITT.
THAT REFUSES TO ALLOW A PARTY TO
VOLUNTARILY DISMISS A COMPLAINT,
EVEN THOUGH DISMISSAL WOULD
CAUSE THE OPPOSING PARTY NO LEGAL
OR OTHER PREJUDICE WHATSOEVER,
SERIOUSLY MISAPPLIES FED. R. CIV. P.
41(a)(2) AND CONFLICTS WITH DECI-
SIONS OF THIS COURT AND OTHER CIR-
Sy = alkene woe atoms he EMC Sta tec tie TRORS Ue SAA
A DISTRICT COURT SHOULD NOT BE AL-
LOWED THE ARBITRARY POWER, WHEN
ONE PARTY FILES A MOTION FOR SUM-
MARY JUDGMENT, TO SIMULTANEOUSLY
RULE THAT THE OPPOSING PARTY
SHALL BE ALLOWED NO DISCOVERY
WITH REGARD TO THE MOTION, TO DIS-
REGARD THE OPPOSING PARTY’S RULE
56(f) AFFIDAVIT, AND, AT THE SAME
TIME, ENTER SUMMARY JUDGMENT ON
THE MERITS WITHOUT FIRST AFFORD-
ING THE OPPOSING PARTY AN OPPOR-
TUNITY TO RESPOND TO THE MOTION. ....
A. The Lower Courts Wrongfully Refused to
Permit Plaintiffs Any Discovery Whatsoever
With Regard to the New 1986 Agency Deeci-
sion and Administrative Reeord. 20000000000...
B. Even if the Court Could Have Done All That
It Did and Disallowed All Diseovery, It Was
Error to Reach the Merits of the FHWA’s
Motion Without Allowing Plaintiffs An Op-
portunity to Respond on the Merits.
11
14
14
carga Ml a
Vv
TABLE OF CONTENTS Continued
Page
IV. PLAINTIFFS WERE PREVAILING PAR-
TIES, FOR COSTS AND ATTORNEY’S FEES,
IN DHCA I, BECAUSE THEY SUCCESSFUL-
LY ESTABLISHED THAT DEFENDANTS’
4(f) ADMINISTRATIVE DECISION WAS IN-
SUFFICIENT AND ILLEGAL, BECAUSE
THE PROJECT WAS HALTED AS A RE-
SULT OF DHCA I, AND BECAUSE THE
PROJECT COULD NOT GO FORWARD AB-
SENT PREPARATION OF A NEW AND LE-
GALLY PROPER ADMINISTRATIVE REC-
ORD AND DECISION. _W.. Peel ae Cn OO 17
COMI ington 21
APPENDIX
December 16, 1987, Eleventh Cireuit Opinion. ........... Al
December 28, 1986, District Court Opinion 00... Al3
September 16, 1985, Eleventh Cireuit Opinion ............ A32
November 14, 1984, District Court Opinion 00000. / A56
March 22, 1988, Eleventh Circuit Judgment ................. A80
February 19, 1988, Eleventh Circuit Denial of Re-
ea tar ee aie R ne ric BR ee IEEE! TEE Naa A82
November 15, 1985, District Court Final Judgment... A84
Constitutional Provisions and Statutes Involved ......... A85
vi
TABLE OF AUTHORITIES
Page
Cases:
Ashwood Manor Civic Association v. Dole, 619
F.Supp. 52 (E.D. Pa. 1985) — A 19
Bagby v. Beal, 606 F.2d 411 (3rd Cir. 1979) 200s. 20
Bender v. Clark, 744 F.2d 1424 (10th Cir. 1984) 000 9
Citizens Council of Delaware County v. Brinegar,
141 9.26 GSE (ee Ce, Te) ee. ©
Data Processing Service Organizations v. Camp,
397 U.S. 150 (1970) | 9
Davis v. USX Corp., 819 F.2d 1270 (4th Cir. 1987)_.13, 14
Defunis v. Odegaard, 416 U.S. 312 (1974) 10
DHCA v. FHWA, 772 F2d 700 (11th Cir. 1985)
F397 1 } aa a Sseslegiloscemnapiestinaeannaneaae
Durham v. Florida East Coast Dathinn’ Company,
385 F.2d 366 (Sth Cir. 1967) 0. ila =
Environmental Defense Fund, Inc. v. Watt, 554
F.Supp. 36 (E.D. N.Y. 1982) 19
Exxon Corp. v. FTC, 663 F.2d 120 (D.C. Cir. 1980)... 16
Fast v. School District of City of Ladue, 728 F.2d
1030 (8th Cir. 1983) cid ae
Foman v. Davis, 371 U.S. 178 (1962) = LAD ee RT 11
Georgia DOT v. City of Atlanta, 255 Ga. 124, 335
8S Bi oe: | 9
Guerrero v. Marsh, 819 F.2d 238 (9th Cir. 1987) .....20, 21
Hamilton v. Firestone, 679 F.2d 143 (9th Cir. 1982)... 13
Hanrahan v. Hampton, 446 U.S. 754 (1980) 2008
Hensley v. Eckerhart, 461 U.S. 424 (1983) 00000. 19
‘Hickman v. Taylor, 329 U.S. 495 (1987)
Hoffman v. Alside, 596 F.2d 822 (Sth Cir. 1979) S14
Holiday Queen Land Corporation v. Baker, 489
F.2d 1031 (5th Cir. 1974) 12,13
ae
vii
TABLE OF AUTHORITIES—Continued
Page
Institutionalized Juveniles v. Secretary of Public
Welfare, 758 F.2d 897, 911 n.25 (3rd Cir. 1985). 20
Lear Siegler, Inc. v. Lehman, 842 F.2d 1102 (9th
Cir. 1988) 21
LeCompte v. Mr. Chip, Inc., 528 F.2d 601 (5th
Cir. 1976) 13
Lowe’s, Inc. v. Bays, 209 F. 2d 610 (5th Cir. 1954). 15
Marbury v. Madison, 5 U.S. (1 Craneh) 137 (1803) 9
Puerto Rico v. Leith, 668 F.2d 46 (1st Cir. 1981)... 14
Save our ve v. Clark, 747 F.2d 1240 (9th
ONS. ee 19
Sierra Club v. pre coe nd iden 776 F.2d
383 (2nd Cir. 1985) . f as «ae
Silas v. Sears Roebuck é Dente, les 586 6 F. 2a
382 (5th Cir. 1978) ~ ae ae
Southern Oregon Citizens v. Clark, 720 F. 2d 1475
(9th Cir. 1983) 19
Visa International Service v. Bank Card Holders
of America, 784 F.2d 1472 (9th Cir. 1986) 0... 16
STATUTES:
28 U.S.C. § 1254 1
ee Nichia clicacctecinnnihethceoene 5
28 U.S.C. §$§ 1988 - sdenanptvcs 18
28 U.S.C. $§ 2412 fF el oie
Section 4(f) of the Federal-Aid cidieae ey
49 U.S.C. § 303 . sSisaniatidaacestes ickeinbnaenigen aii
Article ITI, Section 2 of the United States
Constitution ae ~ ae 2,6,9,10
Federal Rule of Civil Procedure 41(a)(2) 2,11, 12,13
. ef A A ree 2 ae 14, 15, 16
OPINIONS BELOW
The opinion of the Court of Appeals for the Eleventh
Circuit in this case is reported at 833 F.2d 1545 (11th Cir.
1987), and is reprinted in the appendix hereto, page A1,
infra (*‘DHCAII’’).
The opinion of the United States District Court for
the Northern District of Georgia, on respondent’s motion
for summary judgment, is reported at 650 F.Supp. 1368
(N.D. Ga. 1986), and is printed in the appendix hereto,
page A13, infra (‘DHCAII’’).
The 1985 opinion of the Court of Appeals for the
Eleventh Cireuit, reversing in part and affirming in part,
is reported at 772 F.2d 700 (11th Cir. 1985), and is re-
printed in the appendix hereto, page A32, infra (‘‘DHCA
The opinion of the United States District Court for
the Northern District of Georgia entered on November
14, 1984, is not reported, but is reprinted in the appendix
hereto, page A56, infra (‘‘DHCAI’’).
—-0o-
JURISDICTION
Petitioners seek review of a decision of the Eleventh
Cireuit rendered on December 16, 1987. On December 31,
1987, petitioners moved the court of appeals for rehearing
and suggestion of rehearing in banc. These petitions were
denied on February 19, 1988.
The jurisdiction of this Court to review the judg-
ment of the Eleventh Circuit is invoked under 28 U.S.C.
§ 1254.
—_,*
4
1
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
(The text of the following provisions is set forth in
the appendix.)
1. Article Il], Section 2 of the United States Con-
stitution.
2. 5 U.S.C. § 702.
3. Federal Rule of Civil Procedure 41(a)(2).
4. 28U.S.C. § 2412(a).
STATEMENT OF THE CASE
Proceedings Below
On September 21, 1984, the federal defendants ap-
proved funding for construction by the state defendants
of a highway project known as the Presidential Parkway
in Atlanta, Georgia. Plaintiffs filed their complaint on
September 24, 1984, challenging defendants’ decision on
the basis of NEPA and section 4(f) of the Federal-Aid
Highway Act, 49 U.S.C. § 303. After trial on October 22-
25, 1984, the district court dismissed plaintiffs’ complaint.
On appeal, the Eleventh Circuit affirmed in part and re-
versed in part, holding that defendants’ 4(f) decision was
legally inadequate. DHCA v. FHWA, 772 F.2d 700 (11th
Cir. 1985) (DHCA 1). The district court then entered a
final judgment, pursuant to Rule 58, apparently terminat-
ing the substantive litigation. A post-judgment motion
for attorney’s fees was filed by plaintiffs on January 13,
1986 for their successful challenge to the 1984 section 4(f)
agency decision.
On April 25, 1986, FHWA issued a new section 4(f)
decision based on an entirely new administrative record.
The FHWA then filed a motion for ‘‘summary judgment”’
on June 6, 1986, asking the district court to review and
uphold the new 1986 decision. On December 23, 1986, the
district court granted defendants’ motion for summary
judgment and denied plaintiffs’ request for attorney’s fees
for DHCA /. That decision was affirmed by the Eleventh
Circuit on December 16, 1987. Petitioners’ motion for
rehearing and suggestion for rehearing en bane were de-
nied on February 19, 1988.
Statement of Facts
The proposed highway would cut directly through the
middle of Atlanta’s several historic districts, and it would
also destroy four City of Atlanta parks. Because the
highway would cross parks and historic districts, it could
not be built with federal funds without first complying
with section 4(f), which strictly limits highway construc-
tion in park and historic areas. 49 U.S.C. § 303.
At the 1984 trial, plaintiffs introduced some 224 ex-
hibits in their challenge to the legality of the highway
under NEPA and 4(f), and some 30 witnesses testified live
or by deposition. Plaintiffs showed, among other things,
that the project was opposed by a host of government
agencies and that every single local, state, and private
agency or organization that had studied the desirability of
constructing a highway in this location had rejected the
suggestion before the proposal at issue in 1984 came for-
+
ward. Finally, plaintiffs offered evidence to show that
the proposed Presidential Parkway was the most destruc-
tive alternative, in contravention of section 4(f)(2), and
that the administrative record was intentionally distorted
in order to exaggerate the need for the road and to under-
state its true 4(f) impact. The Eleventh Cireuit agreed
that defendants’ 4(f) decision was legally insufficient:
In summary, the case must be remanded to the See-
retary for adequate findings of the impact on 4(f)
properties caused by the Decatur Parkway and the
two Moreland Avenue plans. This review should en-
compass an accurate assessment of the characteristics
of the property that will be affected by the alterna-
tive, e.g., if the property is in a historie district,
whether it has been previously impacted by commer-
cial development and if so, to what extent. The Sec-
retary’s review must also address the quantity of
harm that will accrue to the park or historic site and
the nature of that harm, e.g., visual impact or physi-
ealtaking. 772 F.2d at 718-19.
After the defendants’ administrative decision approv-
ing the project was set aside, the project was halted and
the contracts cancelled. The defendants then faced a range
of options. They could abandon construction of any high-
way; they could propose a different project in the same
corridor; or they could again advocate the same project.
A draft 4(f) decision opting again for the Presidential
Parkway was released on December 22, 1985. (D. Ex.
1-56) The draft was criticized by many citizens and the
United States Department of the Interior. (D. Exs. I-87
to 98; 1-108). These criticisms included the fact that de-
fendants continued to ignore the requirements of section
4(f)(2) and falsely inflated adverse impacts when dealing
with alternatives to the Presidential Parkway, while mini-
aT
5
mizing similar harm when discussing the Presidential
Parkway. The Interior Department concluded that the
Presidential Parkway option had not been justified under
section 4(f)(2). (D. Ex. 1-108) The defendants adhered
to their draft decision in a final decision dated April 25,
1986.
On June 6, 1986, the FHWA moved for ‘‘summary
judgment’’ in connection with the 1986 administrative de-
cision. Plaintiffs responded to the motion for summary
judgment by asserting that the 1986 decision was in no
way before the district court because final judgment had
already been entered; that the complaint did not challenge
the 1986 decision and had never been amended to raise
any such challenge; and that the district court did not have
jurisdiction to review administrative action solely upon
the request of an agency where that action had not been
challenged by an ‘‘aggrieved party’’. (R. 5-54-11; 5-61-1
to 11) Im the event that the district court were to view
the matter otherwise, plaintiffs alternatively moved for a
voluntary dismissal of any portion of their 1984 com-
plaint that might somehow be construed to challenge the
1986 administrative decision. (R. 5-56-1; 5-62-1)
If the court were to conclude that there was jurisdic-
tion over the 1986 administrative decision, and yet refused
to allow dismissal of that portion of plaintiffs’ complaint,
plaintiffs requested leave to file an interlocutory appeal
pursuant to 28 U.S.C. §1292(b). (R. 5-56-2) As a final
alternative, if the court were to reject all of plaintiffs’ re-
quests, they asked the court to allow discovery prior to
their filing a substantive response to the motion for sum-
mary judgment. (R. 5-56-2) Such discovery had been
allowed in 1984 in connection with that administrative de-
6
cision (R. 2-14-1), but the local rules prohibited discovery
without leave of court concerning the 1986 decision. N.D.
Ga. Local Rule 225. An affidavit was also filed pursuant
to Fed. R. Civ. P. 56(f) stating that discovery was neces-
sary to respond to the merits of the motion. (R. 5-54-
Ex. B)
In its December 23, 1986 order, the district court not
only rejected every single one of plaintiffs’ contentions
and requests, including the request for discoverysbut also
reached the merits of the 4(f) decision and granted the
motion for summary judgment. The court also denied
plaintiffs attorney’s fees for their successful challenge to
the 1984 administrative decision. The court’s decision was
affirmed by the Eleventh Circuit, and it is that decision
that petitioners seek review of now.
‘c=
Vv
REASONS FOR GRANTING THE WRIT
I. THE ELEVENTH CIRCUIT’S OPINION THAT
ALLOWS A FEDERAL COURT TO REVIVE
A PRIOR CASE, SOLELY AT THE REQUEST
OF AN ADMINISTRATIVE AGENCY, FOR
THE PURPOSE OF REVIEWING A NEW AD-
MINISTRATIVE DECISION OF THAT AGEN-
CY THAT HAS NOT BEEN CHALLENGED
BY ANY AGGRIEVED PERSON, DISRE-
GARDS THE CASE OR CONTROVERSY RE-
QUIREMENT OF ARTICLE III, THE RE.-
QUIREMENTS OF THE ADMINISTRATIVE
PROCEDURE ACT, AND PREVIOUS DECI-
SIONS OF THIS AND OTHER COURTS.
After the Eleventh Cireuit’s 1985 ruling (DHCA /)
in this case, the FHWA commenced a new administrative
j
7
proceeding. At that point in time, no one could know
what might be the outcome of that proceeding. The court
of appeals had held that the original decision did not sat-
isfy section 4(f) because it did not adequately compare
various alternatives to the proposed project. The court
noted that ‘‘a tremendous task confront[ed] the Secretary
in resolving these difficult issues. (DHCA I at 718)
Although it was entirely possible that a proper sec-
tion 4(f) analysis would have led to an administrative de-
cision disapproving the Presidential Parkway, the FHWA
ultimately did opt again for construction of the Presi-
dential Parkway in its new 1986 decision. However, the
entire administrative record that underlies the 1986 de-
cision document is completely distinct from what existed
in 1984 and from what the plaintiffs put in issue in their
1984 complaint. No part of the 1984 administrative record
is a part of the administrative record in the present case.
833 F.2d at 1548.
The administrative decision before the court in 1986
was an entirely new one, and one not challenged by the
plaintiffs’ 1984 complaint. Indeed, since the administra-
tive decision that is now before this court did not even
exist in 1984 when the complaint was filed, and since the
present administrative record was a complete nullity at
that time, it would have been impossible for the plaintiffs
to have put the 1986 decision or administrative record at
issue in their 1984 complaint. Moreover, section 4(f) is
like most statutes that govern administrative decisions, in
that it merely prohibits those decisions which do not have
an adequate basis in the administrative record. None of
the plaintiffs could have been an ‘‘aggrieved party’’ as
to the new 1986 decision until at least April 25, 1986.
It is undisputed that plaintiffs never attempted to
amend their complaint in any way to challenge the 1986
decision or the administrative record upon which it was
based. To the contrary, as soon as the FHWA suggested
that the 1986 administrative decision might somehow be
brought before the district court for judicial ‘‘approval,”’
plaintiffs expressed surprise and made it clear that they
had no desire to amend their complaint to challenge the
decision. ‘They asserted instead that there was no case
even pending before the court. (R. 5-54-1)
Notwithstanding the posture of this litigation in 1986,
and notwithstanding the fact that the district court had
entered a Rule 58 ‘‘final judgment’’ document on Novem-
ber 19, 1985 that seemingly terminated the court’s juris-
diction over the substance of the case (App. G), the FHWA
nevertheless went forward and filed a motion for summary
judgment seeking approval of its new 1986 administrative
decision. The action of the FHWA was highly unusual
to say the least. This appears to be the first occasion in
which a court has allowed an administrative agency tu seek
judicial review of its own decisions where no person has
attempted to make any judicial challenge to that decision
or the administrative record upon which it is based. The
Eleventh Cireuit’s approval of the FHWA’s action disre-
gards the Administrative Procedure Act requirement that
allows only ‘‘aggrieved persons’’ to challenge administra-
tive actions with which they take issue. 5 U.S.C. § 702.
Nothing in the APA authorizes an administrative agency
to seek approval of its own actions in a non-adversarial
proceeding against unwilling citizen-litigants. The court
of appeals’ holding also disregards the established prece-
dent from this court and all other circuits that limits the
+ at aN teak 6 MO NCR cA Ain ir te a AEN OT AT AS A 2A SIE AR A ate ie Rts ORR eA
review of administrative actions to those cases where an
aggrieved person has an actual case or controversy with
the agency, and where that aggrieved person affirmatively
seeks to challenge the agency decision at issue. See, e.g.,
Data Processing Service Organizations v. Camp, 397 U.S.
150 (1970) ; Bender v. Clark, 744 F.2d 1424, 1428 (10th Cir.
1984).
What is particularly improper about the FHWA’s
action here is that it sought the district court’s imprimatur
in a nonadversarial proceeding. Plaintiffs disclaimed any
intention or desire to participate in the present litigation.
While it is inherently inappropriate and outside the APA
to allow an agency to seek judicial review of its own deci-
sion, it is that much more so where the agency seeks to do
that in a proceeding against wholly unwilling parties. As
the district court was advised by plaintiffs, one of the basic
reasons plaintiffs did not intend to challenge the 1986
decision there was expense. (R. 12-40 to 44) Properly
prosecuted, the cost of a full challenge to the 1986 decision
would have been great, a fact the plaintiffs well knew from
DHCA I. (R. 4-35-1) Plaintiffs also saw the present liti-
gation as duplicative of future state court litigation that
had become necessary before the legality of the project
could be determined under state law. See Georgia DOT v.
City of Atlanta, 255 Ga. 124, 335 S.E.2d 114 (1985).
The absence of any willing litigants to oppose the
FHWA/’s effort to seek judicial review of its new 1986
decision is not a mere procedural flaw. It points up the
very lack of a case or controversy in violation of Article
Ill. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
In rejecting petitioners’ claim that there was no case or
controversy under Article III, the Eleventh Circuit’s de-
10
cision ignores the realities of this case. Not only was
there no willing opposing party to litigate against the
FHWA in 1986, there was absolutely nothing that could
possibly have been in controversy between the original liti-
gants to this case after the Eleventh Cireuit’s first decision
that set aside the FHWA’s 1984 agency action. At least
from the time when the Eleventh Cireuit rendered its first
decision in 1985 (DHCA I) until April 25, 1986 (when the
FHWA rendered its new administrative decision), there
was no action of the defendants in existence that the plain-
tiffs could have complained of. The highway contracts
had been cancelled, and there was no existing agency deci-
sion that in any way approved the highway under section
4(f). There was nothing that the plaintiffs could have
complained of, and there was nothing that made them ‘‘ag-
grieved parties.’’ There simply was no dispute, case or
controversy of any sort between the original parties.
The fact that there was no case or controversy during
this period, which the fK HWA’s own counsel acknowledged
in May 8, 1986 correspondence (R. 5-54-Ex. D), makes the
ruling of the district court and Eleventh Cireuit here
non-sensical. If the lower courts were correct, it would
mean that a case and controversy could exist at one point,
completely cease to exist as an Article III case or contro-
versy at another point, and then somehow rematerialize
later on. If that were the law, that would not only create
tremendous confusion in determining when a case ceased
or was revived, it would squarely conflict with the basic
rule that a case must continue as a real and active case or
controversy during every stage of the proceedings or juris-
diction is lost. Defunis v. Odegaard, 416 U.S. 312 (1974).
11
The absence of a present case or controversy in 1986
is further underscored by the fact that the defendants have
never tried to relet the project for contracts over the
nearly four years that have elapsed since DHCA I. If
there was any controversy in 1986, it was the kind of hypo-
thetical one that fails to satisfy the Article III require-
ment that a controversy be concrete and real. Tl ederal
courts should not be in the business of assuming jurisdic-
tion over possible future disputes, but that is precisely
whai occurred here.
II. THE ELEVENTH CIRCUIT’S DECISION
THAT REFUSES TO ALLOW A PARTY TO
VOLUNTARILY DISMISS A COMPLAINT,
EVEN THOUGH DISMISSAL WOULD CAUSE
THE OPPOSING PARTY NO LEGAL OR OTH-
ER PREJUDICE WHATSOEVER, SERIOUSLY
MISAPPLIES FED. R. CIV. P. 41(a)(2) AND
CONFLICTS WITH DECISIONS OF THIS
COURT AND OTHER CIRCUITS.
In the event that the district court were to conclude
that it not only had jurisdiction over any pending case and
coniroversy, but that the plaintiffs’ 1984 complaint had
somehow anticipatorily challenged a then non-existent
1986 administrative decision, plaintiffs moved to volun-
tarily dismiss the complaint insofar as any portion of it
might be so construed, pursuant to Rule 41 (a)(2). (Rk.
5-56-1) That motion should have been granted. See Fo-
man v. Davis, 371 U.S. 178 (1962). It is not the business of
the United States district courts to compel unwilling plain-
tiffs to litigate cases with government agencies, particu-
larly where they never challenged the matter that is pur-
portedly at issue.
OOOO
12
The district court is not empowered to simply weigh
‘the equities’’ in deciding a motion to dismiss under Rule
41(a)(2). Rather, the party opposing the motion should
first show clear and plain legal prejudice before the mo-
tion can be denied. Durham v. Florida East Coast Rail-
way Company, 385 F.2d 366, 368 (5th Cir. 1967). In the
present case, no such ‘‘legal prejudice’’ was possible. In-
deed, the FHWA could not make such a showing because
it has no right whatsoever to ever seek, much less insist
upon, judicial review of its own actions.
In Holiday Queen Land Corporation v. Baker, 489
F.2d 1031 (5th Cir. 1974), the Fifth Cireuit reversed the
district court’s denial of a motion to dismiss without preju-
dice, citing Durham v. Florida East Coast Railway Com-
pany, supra, and reiterated that the defendant must be
legally prejudiced before a court can consider denying
plaintiff’s motion.
Had the court entered a voluntary dismissal, [de-
fendant] faced only the annoyance of a second liti-
gation upon the same subject matter. Despite [de-
fendant’s} insistence that a second suit would be only
a perpetuation of the frivolous and spurious, we con-
clude that [defendant] would not have lost any sub-
stantial right by the dismissal. Jd. at 1032.
In Holiday Queen, unlike the present case, the plaintiff had
affirmatively undertaken to litigate the matter that was
before the court. After full discovery, it appeared at a
pretrial conference that the plaintiff could prove no claim
against one defendant. The motion to dismiss with regard
to that one defendant was denied by the trial court, and, at
trial, the court then entered judgment for the defendant in
the absence of any evidence against it. The facts in Holi-
13
day Queen, which constituted an abuse of discretion, were
mild by comparison to the present case. See also
LeCompte v. Mr. Chip, Inc., 528 F.2d 601 (5th Cir. 1976).
The district court’s opinion here provided no justifi-
eation for denying plaintiffs’ motion. The court merely
stated: ‘‘The defendants have spent a great deal of time
and money in preparing the new findings.’’ In fact, de-
fendants presented no evidence whatsoever concerning the
‘*time and money’’ purportedly spent in connection with
the ‘‘new findings.’’ More importantly, whatever effort
might actually have been expended in connection with the
new decision is attributable directly to defendants’ initial
refusal to follow the law and nothing more.
The merits of the plaintiffs’ motion to dismiss make
the facts in any reported case under Rule 41(a)(2) pale by
comparison. Here, plaintiffs never made any effort what-
soever to put the 1986 decision in issue. When it was
first suggested that there might be a live case or contro-
versy, and that the defendants wanted to interject the
1986 decision into this case, plaintiffs eschewed any desire
to participate in such litigation. No discovery was had,
and there was no trial. To the extent that the defendants
were put to any time or expense in connection with the
litigation here, it was entirely at their initiative and en-
tirely in pursuit of their own tactical self-interest. In
ruling on plaintiffs’ motion, there was no fact or factor
that weighed in defendants’ favor, and denying the motion
to dismiss was error.
Some of the other many court of appeals decisions
concerning voluntary dismissal that contradict the Ele-
venth Cirenuit’s holding include Davis v. USX Corp., 819
F.2d 1270 (4th Cir. 1987); Hamilton v. Firestone, ©79 F.2d
14
143 (9th Cir. 1982); Puerto Rico v. Leith, 668 F.2d 46 (1st
Cir. 1981); Hoffman v. Alside, 596 F.2d 822, 823 (8th Cir.
1979). The Fourth Cireuit’s recent decision in Davis v.
USX Corp., supra, is particularly pertinent since there
had been a prior appeal in that case, just as occurred here,
before the plaintiff sought to dismiss her complaint. While
the Fourth Cireuit held that the district court had abused
its discretion in refusing dismissal in Davis, petitioners
would note that there was far more justification for the
district court’s action in Davis than in the present case.
Davis was an employment discrimination case where the
subject matter of the initial complaint, and the first appeal,
was still very much alive at the time of the second appeal.
Here, by comparison, the 1986 administrative decision and
record that the FHWA brought before the district court
did not even exist when plaintiffs filed their complaint.
III. A DISTRICT COURT SHOULD NOT BE AL.-
LOWED THE ARBITRARY POWER, WHEN
ONE PARTY FILES A MOTION FOR SUM-
MARY JUDGMENT, TO SIMULTANEOUSLY
RULE THAT THE OPPOSING PARTY SHALL
BE ALLOWED NO DISCOVERY WITH RE-
GARD TO THE MOTION, TO DISREGARD
THE OPPOSING PARTY’S RULE 56(f) AFFI-
DAVIT, AND, AT THE SAME TIME, ENTER
SUMMARY JUDGMENT ON THE MERITS
WITHOUT FIRST AFFORDING THE OPPOS.
ING PARTY AN OPPORTUNITY TO RE-
SPOND TO THE MOTION.
A. The Lower Courts Wrongfully Refused to
Permit Plaintiffs Any Discovery Whatsoever
With Regard to the New 1986 Agency Deci-
sion and Administrative Record.
Because of the bizarre posture of the FHWA motion
for summary judgment, plaintiffs had to request permis-
we.
}
:
:
:
;
:
:
:
:
:
15
sion to pursue discovery before any could be taken. The
four month discovery limitation imposed by the local rule
from the date of answer had lapsed more than two years
before. Notwithstanding the fact that the district court
had allowed discovery during the challenge to the 1984
administrative decision, and notwithstanding the fact that
the 1986 decision document and underlying record were
entirely new and distinct, the district court inexplicably
refused all discovery. In so doing, the court did not even
purport to exercise its discretion or make any determina-
tion of whether discovery was warranted here or why it
might be denied. The court simply rejected the request
out of hand. Not only was the court’s decision a failure to
even exercise discretion, it ignored that fact that plaintiffs
had filed an affidavit pursuant to Rule 56(f) stating that
the motion could not be responded to properly without dis-
covery. (R. 5-54-Ex. B; Ex. 72)
The action in the district court here is literally anpree-
edented. It is axiomatie that parties have a broad right
to discovery. The Supreme Court first laid down this
rule in Hickman v. Taylor, 329 U.S. 495, 507-08 (1947),
where this court wrote ‘‘that the deposition-cdiscovery rules
are to be accorded a broad and liberal treatment.’’ The
court’s refusal to allow any discovery in the face of coun-
sel’s affidavit pursuant to Rule 56(f) was extremely im-
proper. All other circuits have held that a district court
has diseretion to ‘‘control and guide’’ discovery under
Rule 56(f), but district courts are prohibited from pre-
venting a party from discovery concerning the funda-
mental merits of the summary judgment motion. See, e.g.,
Lowe's, Inc. v. Bays, 209 F.2d 610, 615 (Sth Cir. 1954). No
other court has ever held that summary judginent is proper
16
without allowing a party any discovery concerning the
merits of the motion.
Neither can discovery be denied in the face of a Rule
56(f) affidavit unless it is absolutely clear that the evi-
dence sought is non-existent. Visa International Service
v. Bank Card Holders of America, 784 F.2d 1472 (9th Cir.
1986) ; Exxon Corp. v. FTC, 663 F.2d 120 (D.C. Cir. 1980).
At the very least, a district court must allow the party
some limited discovery to determine whether there is a
sufficient basis to allow the full range of discovery sought
by the party to oppose a summary judgment motion. Visa
International Service v. Bank Card Holders, supra at 1476.
In the cited cases, as in all other reported Rule 56(f)
cases, the party has at least been allowed an opportunity
for some discovery. The issue was whether more discov-
ery should have been granted. No case as harsh as the
present one has ever been reported, where a party was
refused all discovery.
B. Even if the Court Could Have Done All That
It Did and Disallowed All Discovery, It Was
Error to Reach the Merits of the FHWA’s
Motion Without Allowing Plaintiffs An Op-
portunity to Respond on the Merits.
In response to FHWA’s summary judgment motion,
the plaintiffs filed extensive pleadings arguing that the
distriet court had no jurisdiction; that there was no case
or controversy pending; that the 1986 administrative deci-
sion had never been put in issue by complaint or counter-
claim; and that, if the court concluded otherwise, it should
either grant plaintiffs’ motion to voluntarily dismiss their
complaint in that respect or certify the court’s jurisdic-
tional decision for an interlocutory appeal. If the district
oe eee ne POH Si IT tah AB aE EASE a i Coleen on
cab a EN tS he
2 ne ER he Al ai ce et aS Ham, Sei et aha
Ne Cnet ThE te Ai ae ee
17
court were to refuse each and every one of those requests,
plaintiffs filed an affidavit stating that the motion for
summary judgment could not be responded to on the merits
without discovery. If the court were empowered to deny
all of these requests, including discovery, the court was
surely without authority to enter summary judgment with-
out allowing plaintiffs an opportunity to respond by brief
on the merits of the 4(f) question to the extent that that
could be done without discovery.
In essence, the district court entered judgment as if
the plaintiffs were in default, and that was error. The
drastic sanction of judgment is appropriate only where
there has been ‘‘a clear record of delay or contumacious
conduct by the plaintiff.’’ Silas v. Sears Roebuck & Com-
pany, Inc., 586 F.2d 382, 385 (5th Cir. 1978). By no
stretch of the imagination could the plaintiffs be accused
of such conduct here. To the contrary, plaintiffs did
everything that should have been done to allow for the
proper adjudication of the issues that were before the
court and at every stage of the proceedings.
IV. PLAINTIFFS WERE PREVAILING PAR-
TIES, FOR COSTS AND ATTORNEY'S FEES,
IN DHCA I, BECAUSE THEY SUCCESSFUL-
LY ESTABLISHED THAT DEFENDANTS’
4(f) ADMINISTRATIVE DECISION WAS IN.
SUFFICIENT AND ILLEGAL, BECAUSE THE
PROJECT WAS HALTED AS A RESULT OF
DHCA I, AND BECAUSE THE PROJECT
GOULD NOT GO FORWARD ABSENT PREP.
ARATION OF A NEW AND LEGALLY PROP.
ER ADMINISTRATIVE RECORD AND DECI-
SION.
Because plaintiffs were successful in DHCA I in estab-
lishing that defendants’ section 4(f) decision was legally
18
inadequate, plaintiffs sought their costs and attorney’s
fees as ‘‘prevailing parties’’ pursuant to 28 U.S.C. §4 1988
and 2412. The Eleventh Circuit characterized this achieve-
ment as a ‘‘mere procedural victory,’’ and citing this
court’s decision in Hanrahan v. Hampton, 446 U.S. 754
(1980), denied attorney’s fees on that basis. 833 F.2d at
1551. In holding that plaintiffs were not prevailing
parties in DHCA I, the Eleventh Cireuit disregarded the
holdings of this court, other circuits, and the very nature
of what a ‘‘prevailing party’’ is in administrative review
litigation.
Plaintiffs’ entire prayer for specific relief in their
complaint requested that the court:
Set aside as contrary to law and an abuse of discre-
tion the defendants’ approval of the project. (R. 31)
Injunctive relief was also requested in order to enforce
the judicial decision that set aside the administrative de-
cision, but as a practical matter no such relief ever needed
to be requested. It was assumed that the defendants would
comply with the DHCA I decision, and defendants did in
fact properly do so and cancelled the contracts on the
project. To this date, some three and one-half years later,
no new contracts have been let.
Plaintiffs achieved all of the ultimate relief they pos-
sibly could have in this case because a decision approving
the project was set aside. In an administrative review
case, no more relief could have been won in the courts.
The Eleventh Cireuit’s holding that the plaintiffs did not
prevail because they only obtained a ‘‘mere procedural
victory’? would make it impossible for a party to recover
costs and fees as a ‘‘prevailing party’’ in nearly every
administrative review case.
19
In a ease challenging the government’s compliance
with the law, the sole power vested in the courts is to pass
on whether the decision at issue did or did not comply
with the applicable substantive statutes. The court gen-
erally does not have the power to make an ultimate and
final finding that a particular project cannot ever go for-
ward, regardless of what future administrative proceed-
ings might show. Since the only relief that is available
from the courts is an order setting aside an administra-
tive decision, parties who achieve such relief have achieved
all that they can by litigation, and they are necessarily
prevailing parties. See Hensley v. Eckerhart, 461 U.S.
424 (1983).
In the specific context of highway litigation, the exact
same issue present here arose in Citizens Council of Dela-
ware County v. Brinegar, 741 F.2d 584 (3rd Cir. 1984).
Attorney’s fees were awarded to the plaintiffs there in
connection with their successful litigation setting aside,
on the basis of section 4(f), an administrative decision to
build a highway. The fact that the defendants could go
back to the administrative process was irrelevant. Indeed,
the defendants there did subsequently revise their admin-
istrative proceedings and again approved the project.
(The district court upheld that later decision when it was
affirmatively challenged by some of the same plaintiffs.
See Ashwood Manor Civic Association v. Dole, 619 F.Supp.
52 (B.D. Pa. 1985).) See also Sierra Club v. Army Corps
of Engineers, 776 F.2d 383, 393 (2nd Cir. 1985) ; Save our
Ecosystems v. Clark, 747 F.2d 1240 (9th Cir. 1984) ; South-
ern Oregon Citizens v. Clark, 720 F.2d 1475 (9th Cir.
1983); Environmental Defense Fund, Inc. v. Watt, 554
F.Supp. 36 (E.D. N.Y. 1982), aff’d 722 F.2d 1081 (2nd
20
Cir. 1983) (awarding fees in NEPA and environmental
cases where defendants could recommence the challenged
activity upon compliance with the underlying substantive
statutes at issue).
Plaintiffs could cite any number of decisions where
much less relief was won but plaintiffs nevertheless ‘‘pre-
vailed.’’ Many of these cases involve situations where
the plaintiff achieved none of the ‘‘ultimate objective”’
they may have desired, but the defendants were forced to
comply with some procedural requirement of the law. Such
eases include Fast v. School District of City of Ladue, 728
F.2d 1030, 1032 (8th Cir. 1984) (en bane); /nstitutional-
ized Juveniles v. Secretary of Public Welfare, 758 F.2d
897, 911 n. 25 (3rd Cir. 1985); Bagby v. Beal, 606 F.2d 411
(3rd Cir. 1979).
A recent case in the Ninth Circuit underscores just
how far the Eleventh Circuit’s opinion is from established
precedent. Guerrero v. Marsh, 819 F.2d 238 (9th Cir.
1987). In Guerrero, the plaintiff was seeking a correc-
tion in his Army records, but the Army Board of Correc-
tion took no action on his request. The sole success that
Guerrero achieved through litigation was to compel the
Army to take some action on his request. Whether the
plaintiff might ultimately get his records corrected as
desired played no part in the Ninth Cirecuit’s decision.
Nevertheless, Guerrero’s victory in ultimately compelling
the Army to make some administrative decision on his
request was sufficient to make him the prevailing party
since he obtained all that he could in that case. ‘‘Guer-
rero has prevailed under the Equal Access to Justice Act,
28 U.S.C. § 2412.’’ 819 F.2d at 242. Under the Eleventh
21
Cireuit’s reasoning in the present case, however, Guerrero
would have obtained relief that would have been much
closer to a ‘‘mere procedural victory’’ than the relief ob-
tained by the plaintiffs here, and he would not have been
a ‘‘prevailing party.’’
The Ninth Circuit recently followed Guerrero in an-
other KAJA case, Lear Siegler, Inc. v. Lehman, 842 F.2d
1102, 1115-17 (9th Cir. 1988). There, the court held:
Litigants who succeed in a claim to compel a de-
fendant to comply procedurally with the law can be
‘‘prevailing parties’? even if they do not win relief
on their related substantive claim. Jd. at 1116.
The Eleventh Cireuit’s construction of prevailing
party is clearly incorrect, and it contradicts the decisions
of this court and other circuits. Because the interpreta-
tion of ‘‘prevailing party’’ status for cost and fee awards
is common to a tremendous amount of litigation through-
out this country, this conflict between the circuits should
be resolved.
fy
Vv
CONCLUSION
For the foregoing reasons, petitioners respectfully
pray that the writ be granted and that this case be brought
before the United States Supreme Court for review.
Respectfully submitted,
WALBERT & HERMANN
/s/ By: Davi F. WaLBertr
100 Peachtree Street
Suite 500
Atlanta, Georgia 30303
404/523-5000
Al
APPENDIX A
DRUID HILLS CIVIC ASSOCIATION,
INC., et al., Plaintiffs-Appellants,
V.
FEDERAL HIGHWAY ADMINISTRATION, et al.,
Defendants-Appellees.
DRUID HILLS CIVIC ASSOCIATION,
INC., et al., Plaintiffs,
Vv.
FEDERAL HIGHWAY ADMINISTRATION,
et al., Defendants,
National Trust for Historic
Preservation in the United
States, Appellant.
Nos. 87-8122, 87-8149.
United States Court of Appeals,
Eleventh Circuit.
Dee. 16, 1987.
Before RONEY, Chief Judge,
HATCHETT, Circuit Judge, and
HAND*, Chief District Judge.
HATCHETT, Circuit Judge:
The district court’s ruling in this case requires that we
apply the principles established in J'aylor v. Heckler, 778
F.2d 674 (11th Cir.1985), and Litman v. Massachusetts
Mutual Life Insurance Co., 825 F.2d 1506 (11th Cir.1987)
(in bane). Applying those principles, we affirm.
* Honorable William Brevard Hand, Chief U.S. District Judge
for the Southern District of Alabama, sitting by designation.
A2
PROCEDURAL HISTORY
The federai appellees authorized funding for the state
appellees to construct a project known as the Presidential
Parkway in Atlanta, Georgia.! The parkway is a proposed
2.4 mile section of highway running east from the I-75/1-85
stub in downtown Atlanta, George, to Ponce de Leon Ave-
nue, an east-west roadway that is part of the Olmsted Park
network in Atlanta’s Druid Hills historie district.
Several civic associations and residents of the affected
area (collectively referred to as Druid Hills) challenged
the project in the district court.2 The district court dis-
missed Druid Hill’s complaint ruling that the government
had made adequate findings in its environmental impact
statement (EIS). On appeal, we affirmed the district
court’s decision in part and reversed it in part. Druid
Hills Civic Association, Inc., et al. v. Federal Highway
Administration, et al., 772 F.2d 700 (11th Cir.1985). We
remanded the case to the district court for a further re-
mand to the Secretary of Transportation, requiring the
Secretary to make adequate findings under section 4(f) of
the Department of Transportation Act of 1966, 49 U.S.C.
1. The appellees are: FHWA; USDOT; GDOT; EPA; R.A. Barn-
hart, the Administrator of the FHWA; D.jJ. Altobelli, Georgia
State Division Director of the FHWA; Elizabeth Dole, Secre-
tary of the USDOT; Thomas D. Moreland, Commissioner of
the GDOT; and Carl Jeter, Regional Administrator of the EPA.
2. The appellants are: The Druid Hills Civic Association, Inc.;
Inman Park Restoration, Inc.; Candler Park Neighborhood Or-
ganization; CAUTION, Inc.; various named individuals; and
the National Trust for Historic Preservation.
De ee ee ae ee eee Pee ee ee
Oe ee ete
eet ee eae eT ee es
ee ae eee ee ee
A3
§ 303 (1982). Section 4(f)(1) requires that the Secretary
find no feasible or prudent alternatives to the use of park
lands and historic sites before approving such property for
highway purposes.* Section 4(f)(2) requires the Secretary
3. Our directions on remand were:
In summary, the case must be remanded to the Secretary
for adequate findings of the impact on 4(f) properties caused
by the Decatur Parkway and the two Moreland Avenue
plans. This review should encompass an accurate assess-
ment of the characteristics of the property that will be af-
fected by the aiternative, e.g., if the property is in a his-
toric district, whether it has been previously impacted by
commercial development and if so, to what extent. The
Secretary’s review must also address the quantity of harm
that will accrue to the park or historic site and the nature
of that harm, e.g., visual impact or physical taking. It will
not suffice to simply state that an alternative route would
affect 4(f) properties without providing some rational, docu-
mented basis for such a conclusion. In short, the same con-
sideration must be given to whether these alternative routes
would minimize harm to the section 4(f) properties as was
accorded the adopted route.
772 F.2d at 718.
4. Section 4(f) of the Department of Transportation Act, 49
U.S.C. § 1653(f), was repealed in 1983 but was recodified
without substantial change at 49 U.S.C. § 303.
Section 18 of the Federal-Aid Highway Act, 23 U.S.C.
§ 138, is virtually identical to section 4(f) of the Department
of Transportation Act, 49 U.S.C. § 303. For purposes of this
appeal, the statutes will be referred to collectively as “sec-
tion 4(f).”
Section 4(f) states:
(a) It is the policy of the United States Government that
special effort should be made to preserve the natural
beauty of the country-side and public park and recreation
lands, wildlife and waterfowl refuges, and historic sites.
(b) The Secretary of Transportation shall cooperate and
consult with the Secretaries of the Interior, Housing and
(Continued on following page)
A4
to utilize all possible planning to minimize harm to parks
and historic sites before allowing a property to be used for
highway purposes,
Following our remand, in further remanding the case
to the Secretary, the district court adopted the mandate of
this court. At that time, Druid Hills moved for attorney’s
fees.
Following remand to the Secretary, the Federal High-
way Administration (FHWA) made additional findings
and again determined that the project satisfied the require-
ments of section 4(f). The FHWA then filed in the district
court a motion for summary judgment. The administra-
tive record filed with the motion for summary judgment
was developed entirely upon remand and did not include
any part of the record developed in the original admin-
istrative proceedings. The district court granted FHWA’s
(Continued from previous page)
Urban Development, and Agriculture, and with the States,
in developing transportation plans and programs that in-
clude measures to maintain or enhance the natural beauty
of lands crossed by transportation activities or facilities.
(c) The Secretary may approve a transportation program
or project requiring the use of publicly owned land of a
public park, recreation area, or wildlife and waterfowl
refuge of national, State, or local significance, or land of
an historic site of national, State or local significance (as
determined by the Federal, State, or local officials having
jurisdiction over the park, area, refuge, or site) only if—
(1) there is no prudent and feasible alternative to us-
ing that land; and
(2) the program or propect includes all possible plan-
ning to minimize harm to the park, recreation area,
wildlife and waterfowl refuge, or historic site resulting
from the use.
49 U.S.C. § 303 (1982).
A5
motion for summary judgment and denied Druid Hills’s
motion for attorney’s fees, 650 F.Supp. 1368.
ISSUES
On appeal, Druid Hills contends that: (A) the district
court lacked jurisdiction to entertain FHWA’s motion for
summary judgment; (B) the district court abused its dis-
cretion in denying Druid Hills’s motion to voluntarily dis-
miss the complaint; (C) the district court abused its dis-
cretion in denying Druid Hills’s request for discovery; and
(D) the district court abused its discretion iu denying
Druid Hills attorney’s fees and costs.
A. JURISDICTION
Druid Hills contends its complaint challenged only the
original decision in the Draft and Final Environmental
impact Statements (DEIS and FEIS), which also served
as the 4(f) decision document. The DEIS and FEIS did
not become part of the administrative record considered
by the Secretary upon remand for further findings under
section 4(f). Druid Hills’s complaint alleged that ap-
proval of the Presidential Parkway was in conflict with
section 4(f), the National Environmental Policy Act of
1969, 42 U.S.C. §§ 4321-75, because certain hearings on the
project had not been held. The district court originally
ruled against Druid Hills on all issues raised, but this court
remanded the case to the district court for further remand
‘*to the Secretary for adequate findings of impact on 4(f)
properties caused by the Decatur Parkway and the two
Moreland Avenue plans.’’ Druid Hills, 772 F.2d at 718.
According to Druid Hills, since the 1984 complaint did not
contemplate a challenge to the 1986 decision of the Secre-
a
cat incenatiaemenniaie aia
A6
tary on remand, the district court lacked jurisdiction to
consider FHWA’s motion for summary judgment seeking
approval of the Secretary’s 1986 decision. Druid Hills
further contends that when the district court entered judg-
ment adopting the remand order of the Eleventh Cireuit,
that judgment constituted a final judgment, effectively
terminating the litigation and the district court’s juris-
diction.
Had the district court originally determined the See-
retary’s 4(f) findings inadequate and remanded the case
to the Secretary, clearly, the district court would have re-
tained jurisdiction of the case until the proceedings on
remand were concluded.
This cireuit treats a/l remand orders to the Secretary
fof Health and Human Services] as inierlocutory
orders, not as final judgments. See Howell v.
Schweiker, 699 F.2d 524 (11th Cir.1983); Tookes v.
Harris, 614 F.2d 1296 (5th Cir.1980) (published as an
appendix in Howell). In Howell, we held that the ‘dis-
trict court’s [remand]... [does] not end the litiga-
tion’ because the Secretary may thereafter grant or
deny benefits to the claimant . . . [who] may obtain
subsequent judicial review.”
Taylor v. Heckler, 778 F.2d 674, 677 (11th Cir.1985)
(emphasis in original).
The only distinction between Taylor and this case is
that the district court remanded the case to the Secretary
of Transportation because the Eleventh Cireuit ordered
2 Because this circuit considers a remand order an interlocu-
tory order, it follows by operation of law that the district court
retains jurisdiction of the case until the proceedings on remand
have been concluded. To terminate its jurisdiction, the district
court must subsequently enter a dispositive order of some sort.
ya oe -™” ee ee ee
A7
it to do so. This is a distinction without a difference.
Hence, the district court retained jurisdiction.
Druid Hills contends the district court's entry of judg-
ment adopting this court’s mandate after the first appeal
constituted a final judgment under the separate document
rule of Federal Rule of Civil Procedure 58. In support
of this proposition, Druid Hills cites United States v.
Perez, 736 F.2d 236 (Sth Cir.1984). Perez held a district
court’s order adopting a magistrate’s report and recom-
mendation constituted a judgment under rule 58.
Neither Perez nor other cases cited by Druid Hills
and amici curiae involved remand orders like the one in
this case.’ The purpose of the separate document rule is
to provide a clear indication of when litigation is ter-
minated. In re Tidewater Group, Inc., 734 F.2d 794, 795-
96 (11th Cir.1984). Beeause the purpose of a remand or-
der is to continue litigation rather than terminite it, such
orders cannot reasonably be construed as terminating liti-
gation on the issues remanded.
Druid Hills further argues that its complaint merely
sought a determination that the Secretary’s original ap-
proval of the parkway did not satisfy section 4(f) require-
ments. Since the court of appeals agreed and remanded
the ease for further findings, Druid Hills asserts that it
received all the relief it originaliy sought, thereby elim-
5. We affirm the district court’s denial of National Trust for
Historic Preservation’s motion to intervene in this lawsuit.
We treat its briefs appealing (in Case No. 87-8149) the dis-
trict court’s denial of its motion to intervene as amicus
briefs. Amicus curiae Carter Presidential Center also filed
a brief in this case (No. 87-8122).
A8
inating any case or controversy from the lawsuit and de-
priving the district court of article III jurisdiction.
When a party files a lawsuit it submits itself to the
authority and rules governing that court. In general,
these rules exist to further justice, not to help or hinder
a particular party. Litman v. Massachusetts Mutual Life
Insurance Co., 825 F.2d 1506 (11th Cir.1987) (in bane).
A party cannot couch its pleadings so as to unilaterally
eliminate a rule governing the proceedings. In short,
Druid Hills could not unilaterally deprive this court of its
authority to remand the case to the Secretary for further
findings. When Druid Hills filed its complaint it sub-
mitted itself to the authority of the federal court system.
The fact that Druid Hills may have become satisfied at a
given procedural stage in the litigation does not deprive
the federal court system of article [11 jurisdiction. The
existence of a case or controversy must be viewed in light
of all the proceedings available to both litigants under
the rules and authority of the federal court system. Were
the rule otherwise, a party could state in its complaint
that it seeks relief ‘‘only from the district court’’ and upon
receiving a favorable judgment, avoid an appeal on the
ground that no case or controversy exists because the
complainant is satisfied with the district court’s judgment.
Although this court’s reversal of the district court may
have satisfied Druid Hills, it did not satisfy FHWA, et al.
Either party may create or sustain a case or controversy.
FHWA’s motion for summary judgment, made following
the Secretary’s new 4(f) findings on remand, presented a
case or controversy satisfying the district court’s juris-
dictional requirements. Accordingly, the district court re-
A lila Sw aN ER
A9
tained jurisdiction of this case after it remanded the case
to the Secretary for further proceedings.
B. VOLUNTARY DISMISSAL
Druid Hills contends the district court abused its dis-
cretion in denying Druid Hill’s motion to voluntarily dis-
miss the complaint. A district court does not abuse its
discretion in granting a motion for voluntary dismissal
unless the party opposing the motion ‘‘will suffer some
plain legal prejudice other than the mere prospect of a
second law suit. It is no bar to dismissal that | the movant]
may obtain some tactical advantage thereby.’’ Durham
v. Florida East Coast Railway Co., 385 F.2d 366, 368 (5th
Cir.1967) (emphasis in original).
Had the district court granted Druid Hills’s motion to
voluntarily dismiss its complaint, then FHWA, et al. would
effectively have suffered the legal detriment of being de-
prived of the court of appeals’s order remanding the case
to the Secretary for further proceedings. Where a party
brings an appeal challenging the decision of a lower tri-
bunal and the case is remanded for new proceedings, then
the right to new proceedings belongs to both parties, not
to either party individually. Litman v. Massachusetts
Mutual Life Insurance Co., 825 F.2d at 1514 (11th Cir.
1987) (in bane).
In Litman, the defendant appealed a jury verdict
awarding punitive damages to the plaintiff. On appeal,
this court ordered a new trial solely on the issue of puni-
tive damages. On remand, the defendant filed in district
court a waiver of its right to a new trial, consenting to the
jury’s original punitive damage award. Accordingly, the
A10
district court entered judgment for plaintiff in the amount
of the punitive damages originally determined by the jury.
That decision was itself appealed to the Fleventh Cireuit,
which heard the case in bane. The in bane court held:
‘‘Once the appellate ruling became final, the right to a
new trial belonged to neither party individually but rather
to both.’’ Litman, 825 F.2d at 1514.
Therefore, when this court remanded this case to the
Secretary for further findings, both appellants and appel-
lees acquired a right to those proceedings. Since the dis-
trict court retained jurisdiction of this case on remand,
this court’s remand order necessarily conferred upon both
parties a right to have the case fully litigated in the dis-
trict court after the administrative hearing. Had the dis-
trict court granted Rruid Hills’smotion for voluntary dis-
missal, this would have deprived FHWA, et al. of their
right to further proceedings in the district court. Since
FHWA, et al. would have suffered plain legal prejudice
had Druid Hills’s complaint been dismissed, the district
court did not abuse its diseretion in denying Druid Hills’s
motion for voluntary dismissal.
C. DISCOVERY
Druid Hills also contends that the district court abus-
ed its discretion in denying the motion for discovery. By
the requested discovery, Druid Hills sought to attack the
motion for summary judgment. The district court denied
discovery despite the affidavit of counsel for Druid Hills
pursuant to rule 56(f) of the Federal Rules of Civil Pre-
cedure. That rule allows a court to permit ‘‘depositions to
be taken or discovery to be had’’ to allow a party to oppose
a motion for summary judgment. On the other hand,
eee ae oe
All
FHWA contends that the affidavit of counsel for Druid
Hills did not comply with rule 56(f) because the affidavit
did not give reasons why Druid Hills could not ‘‘ present
by affidavit facts essential to justify [its] opposition.”’
Fed.R.Civ.P.56(f).
FHWA filed its motion for summary judgment on
June 6, 1986. After Druid Hills obtained an extension of
time to respond to the motion, it filed a brief on August 20,
1986. That brief, however, did not respond substantively
to the merits of the motion. Druid Hills also failed to take
advantage of the district court’s September 16, 1986,
order allowing Druid Hills to file a brief in opposition to
the motion. Druid Hills’s apparent reluctance to make
any serious substantive challenge to the motion, combined
with the fact that it had the opportunity to conduct exten-
sive discovery at the time of its original challenge to the
approval of the Presidential Parkway, support the district
court’s determination that further discovery would not
lead to the creation of a material question of fact. There-
fore, the district court did not abuse its discretion in deny-
ing Druid Hills’s motion for additional discovery.
D. ATTORNEY FEES
Under 42 U.S.C. $§ 1983 and 1988, a party is entitled
to attorney’s fees if it prevails on a significant legal issue,
thereby achieving the primary relief sought. Bd J Muse,
Inc. v. McAuliffe, 719 F.2d 1536, 1539 (11th Cir.1983). We
read Druid Hills’s complaint as seeking to prevent the con-
struction of the Presidential Parkway. Druid Hills con-
tends it merely sought a ruling that the FHWA’s initial
approval of the parkway did not comply with section 4(f).
We interpret that, however, as a mere procedural victory.
Al2
Since we have not overturned the district court’s granting
of FHWA’s motion for summary judgment, Druid Hills
has not ultimately achieved the primary relief sought and
is therefore not entitled to attorney’s fees. Hanrahan v.
Hampton, 446 U.S. 754, 757-58, 100 S.Ct. 1987, 1989-90, 64
L.Ed.2d 670 (1980); Doe v. Busbee, 684 F.2d 1375, 1580
(11th Cir.1982).
We find no error in the district court’s denial of Na-
tional Trust for Historical Preservation’s motion to inter-
vene.
Druid Hills’s cla. that the case should be remanded
for reassignment to a different district judge is moot.
The judgments of the district court are affirmed in
both cases.
AFFIRMED.
PT a ee ee ee Oe ee ee ee ee, ee Y
A13
APPENDIX B
DRUID HILLS CIVIC ASSOCIATION, INC.,
et al.
V.
FEDERAL HIGHWAY ADMINISTRATION,
et al.
Civ. No. C-84-1931-A.
United States District Court,
N.D. Georgia,
Atlanta Division.
' Dec. 28, 1986.
ORDER
O’KELLEY, District Judge.
Presently before the court are plaintiffs’ motion for
attorneys’ fees, costs, and expenses; federal defendants’
motion for summary judgment and plaintiffs’ conditional
motion for voluntary dismissal as to the subject matter of
federal defendants’ motion for summary judgment; and
plaintiffs’ motion to allow filing of amendment to and clar-
ification of plaintiffs’ brief in support of plaintiffs’ appli-
cation for fees, costs, and expenses.
FACTS
Plaintiffs filed their complaint in this case on Septem-
ber 28, 1984. The complaint challenged the May 22, 1984
administrative decision approving the construction of the
Presidential Parkway under section 4(f) of the Depart-
ment of Transportation Act of 1966, 49 U.S.C. ¢ 303 (1982),
and the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. §§ 4821-4347 (1982), and on other
Al4
grounds that are no longer relevant. The complaint re-
quested both declaratory and injunctive relief. This court
consolidated the application for preliminary injunction
with the trial on the merits. The trial was held October
22-25, 1984. By order dated November 14, 1984, this court
denied both plaintiffs’ motion to enjoin construction of the
Parkway and for an injunction pending appeal.
Plaintiffs’ appealed this decision to the Eleventh Cir-
cuit Court of Appeals. On September 16, 1985, the Elev-
enth Cireuit rendered its opinion affirming this court’s
decision in most respects. Druid Hills Civic Association v.
Federal Highway Administration, 772 ¥.2d 700 (11th Cir.
1985). The Eleventh Cireuit found, however, that this
court erred in finding that the defendants section 4(f) (2)
decisions concerning the Decatur Parkway and the two
Moreland Avenue plans were adequate because the Elev-
enth Cireuit found that the EIS did not provide the predi-
cate facts on which to make a reasoned judgment. ‘The
Eleventh Circuit remanded this case for the Secretary of
Transportation to make adequate findings of the impact
on 4(f) properties caused by the Decatur Parkway and
the two Moreland Avenue plans. Jd. at 718-19. By order
of November 15, 1985, the mandate of the Eleventh Circuit
was made the judgment of this court.
On January 13, 1986, Plaintiffs filed a motion for an
award of attorneys’ fees, costs, and expenses. Plaintiffs’
basis for this motion is that plaintiffs were the prevailing
party in this action pursuant to the decision and judgment
of the Eleventh Cireuit.
After remand the state and federal defendants under-
took additional analysis and made additional findings as
Ald
described in the Addendum. (A.R. II-11). After complying
with the administrative procedures, the Secretary of
Transportation on April 25, 1986, determined that there
was no prudent and feasible alternative to the construction
of the Presidential Parkway and that the project includes
all possible planning to minimize harm. On June 6, 1986,
the federal defendants filed this motion for summary judg-
ment asking the court to determine the adequacy of the
federal defendants’ findings pursuant to 49 U.S.C. § 303
(1982).
DISCUSSION
I. Federal Defendants’ Motion for Summary Judgment.
A. Whether Defendants’ Motion for Summary Judg-
ment is Properly Before this Court?
Plaintiffs contend that the Federal Highway Adminis-
tration’s (FHWA) motion for summary judgment asks
this court to approve the agency’s administrative decision
in an advisory opinion. It is plaintiffs’ position that the
new administrative decision made by defendants in April
has never been challenged by the complaint in this case,
and therefore, there can be no basis for an action in this
case.
Whether defendants motion for summary judgment is
properly before the court depends primarily on whether by
adopting the mandate of the Eleventh Circuit, which re-
manded this case for the Secretary of Transportation for
additional fact-finding, this court has entered a final judg-
ment. The court finds that this issue is controlled by
Taylor v. Heckler, 778 F.2d 674 (11th Cir.1985) and this
court’s adoption of the Eleventh Circuit mandate does not
constitute a final judgment.
oe.” Si.
Al6
Taylor involved a remand by a district court to an
administrative agency. In Taylor the Eleventh Circuit
said‘‘[t]his circuit treats all remand orders to the Secre-
tary as interlocutory orders, not as final judgments.’’ Id.
at 677 (emphasis in original) (citing Howell v. Schweiker,
699 F.2d 524 (11th Cir.1983); Tookes v. Harris, 614 F.2d
1296 (5th Cir.1980)). This court can find no authority for
treating a remand to the Secretary of Health and Human
Services differently than a remand to the Secretary of
Transportation.
Having decided that the adoption of the Eleventh Cir-
cuit’s mandate does not constitute a final judgment, the
court will next consider plaintiffs’ contention that there is
no case or controversy before the court and any decision
on federal defendants’ motion for summary judgment
would constitute an advisory opinion. A controversy must
be definite and concrete touching the legal relations of
parties having adverse legal interests. Aetna Life Insur-
ance Co. v. Haworth, 300 U.S. 227, 239, 57 S.Ct. 461, 463,
81 L.Ed. 617 (1937). The plaintiffs claim that there is no
case or controversy because they do not challenge the re-
cent 4(f) findings but only the 4(f) findings made by de-
fendants in 1984.
By reversing a judgment of the district court, the ap-
pellate court voids the lower court’s findings. Atlantic
Coast Lie Railroad v. Saint Joe Paper Co., 216 F.2d 832
(5th Cir.1954), cert. denied, 348 U.S. 963, 75 S.Ct. 522, 99
L.Ed. 7510 (1955). In this ease the Eleventh Circuit void-
ed this ecourt’s decision that the Secretary of Transporta-
tion had made adequate 4(f) findings with regard to the
Decatur Parkland and Moreland Avenue plans. For this
reason, the court finds that the 4(f) issue first raised in
the complaint still exists concerning the three alternatives
STE Se Le ee eT R
Pe es eo
Al7
about which the court of appeals reversed and remanded
to this court. The 1986 findings supplement the 1984 find-
ings that the court of appeals determined were not ade-
quate.
B. Plaintiffs’ Alternative Motion for Voluntary
Dismissal.
If an answer or a motion for summary judgment has
been served, plaintiff’s right to dismiss by simply giving
notice ends. In this case the defendants have refused to
stipulate to dismissal; therefore, plaintiff must have the
permission of the court to dismiss. Fed.R.Civ.P. 41(a).
The purpose of rule 41(a)(2) is to prevent voluntary
dismissal that may unfairly affect the other side. For this |
reason, courts have generally allowed dismissals unless the /
defendants will suffer some legal prejudice other than a
second lawsuit. Durham v. Florida East Coast Railway
Co., 385 F.2d 366 (5th Cir.1967); 9 C. Wright & A. Miller,
Federal Practice and Procedure, § 2364 (1971). |
In this case the court finds that dismissal at this stage
would result in prejudice to the defendants. This case
has been in litigation for more than two years. The de-
fendants have spent a great deal of time and money in
preparing the new findings. Accordingly, the equities in
this case fall in favor of denying plaintiffs’ motion for
voluntary dismissal.
C. Plaintiffs’ Request for Interlocutory Appeal.
Plaintiffs request that, if this court finds that there
is a case or controversy before the court and that plain-
tiffs’ voluntary motion to dismiss should be denied, the
A18
court allow plaintiffs to file an interlocutory appeal from
such decisions pursuant to 28 U.S.C. § 1292(b).
There are three prerequisites set forth in 28 U.S.C.
§ 1292(b) that must be met before a court should allow
an interlocutory appeal: (1) the appeal must concern a
controlling question of law; (2) there must be a substan-
tial ground for difference of opinion about this controlling
question of law; and (3) the appeal must materially ad-
vance the ultimate determination of the litigation.
With regard to plaintiffs’ motion for voluntary dis-
missal, generally matters that are within the court’s dis-
cretion are not matters about which a court should grant
an interlocutory appeal. See Allen v. Mississippi Commis-
sion of Law Enforcement, 424 F.2d 285 (5th Cir.1970). Al-
though whether there is a case or controversy befcre this
court concerns a controlling question of law, there is clear
precedent in this circuit for this court’s position. The
court finds that allowing plaintiff to file an interlocutory
appeal on these issues would result only in undue delay.
Accordingly, plaintiff’s request to file an interlocutory ap-
peal is denied. ;
D. Plaintiffs’ Request for a Grant of a Ninety-Day
Discovery Period. L
When a case has been reversed and remanded, the
district court has discretion concerning whether any addi-
tional discovery should be permitted. The question before
the court on federal defendant’s motion for summary judg-
ment is whether the administrative record upon which the
defendants relied in making their decision is adequate to
support their findings. The same administrative record
A19
that the defendants relied upon is before this court. Con-
sequently, the court does not find that additional discovery
would aid the resolution of this question. The court, there-
fore, denies plaintiffs’ request for an additional ninety-day
discovery period.
E. Merits of Federal Defendants’ Summary Judg-
ment Motion.
After careful review of the record the court grants
federal defendants’ motion for summary judgment.' ‘‘ ‘The
summary judgment procedure is particularly appropriate
in cases in which the court is asked to review . .. a decision
of a federal administrative agency.’’’ Florida Fruit &
Vegetable Ass’n v. Brock, 771 F.2d 1455, 1459 (11th Cir.
1985) (quoting 10A C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure, Civil 2d § 2733 (1983)) ;
Holley v. Seminole County School District, 755 F.2d 1492,
1499-1500 n. 5 (11th Cir.1985). Summary judgment is par-
ticularly appropriate in cases such as this one because the
court considers the same record that was before the agency
when making its decision. Citizens to Preserve Overton
1. On July 7, 1986, plaintiffs filed their response to defendants’
motion for summary judgment. In that response, plaintiffs
addressed the preliminary questions discussed supra in this
order but did not address the merits of defendants’ sum-
mary judgment motion. By order of September 16, 1986,
the court granted plaintiff until rma 22, 1986 to file
a brief pM soreron: the merits of defendants’ motion and set
a hearing on these motions for October 17, 1986. Piaintiffs
did not File their brief within the designated time nor have
they filed a brief since that time.
In addition to the pleadings filed concerning the defen-
dants’ motion for summary judgment, the court also re-
viewed the exhibits attached to those pleadings in determin-
ing the merits of this motion.
A20
Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28
L.Ed.2d 136 (1971); Brock, 771 F.2d at 1459; Ryder Truck
Lines, Inc. v. United States, 716 F.2d 1369, 1378 (11th Cir.
1983).
The court of appeals remanded this case to the Secre-
tary of Transportation ‘‘for adequate findings of the im-
pact on 4(f) properties caused by the Decatur Parkway
and Moreland Avenue plans.’* Druid Hills, 772 F.2d at
718. The court further directed the Secretary that
{t]his review should encompass an accurate assess-
ment of the characteristics of the property that will be
affected by the alternative, e.g., if the property is in a
historic district, whether it has been previously im-
pacted by commercial development and if so, to what
extent. The Secretary’s review must also address the
quantity of harm that will accrue to the park or his-
toric site and the nature of that harm, e.g., visual im-
pact or physical taking. It will not suffice to simply
state that an alternative route would affect 4(f) pro-
perties without providing some rational, documented
basis for such a conclusion. In short, the same con-
sideration must be given to whether these alternative
routes would minimize harm to the section 4(f) pro-
perties as was accorded the adopted route.
Id.
Pursuant to these directives, the state and federal de-
fendants undertook additional analysis and made addi-
tional findings to comply with the Eleventh Circuit’s man-
date. On April 25, 1986, after reviewing the Addendum, the
administrative record and all comments about their new
findings, the federal defendants determined that there was
no prudent and feasible alternative to the construction
of the Presidential Parkway and that the project includes
all possible planning to minimize harm. The court finds
A21
that the federal defendants’ decision complies with the
court of appeals’ directives.
The Supreme Court set forth the standard of review
of the Seeretary’s decisions concering section 4(f) prop-
erties in Overton Park. The reviewing court must conduct
a three part inguiry. First, the court must determine
whether the Secretary properly acted within the socpe of
her authority. When deciding this, the court must de-
termine whether the Secretary properly construed her au-
thority to approve the use of 4(f) properties only when
there were no other feasible and prudent alternatives, and
whether the Secretary could have reasonably believed that
no such alternatives exist. Second, the court must inquire
whether the Secretary’s decision was arbitrary, capricious
or an abuse of discretion, that is, whether the decision was
based on consideration of relevant factors and whether
there has been a clear error of judgment. Third, the court
must determine whether the Secretary’s actions followed
the requisite procedural requirements. Overton Park, 401
U.S. at 415-17, 91 S.Ct. at 823-24; Druid Hills, 772 F.2d
at 714.
(1) Whether the Secretary Acted Properly Within
the Scope of Her Authority.
The Secretary’s section 4(f) determinations filed with
this court substantiates that the Secretary properly con-
strued her authority with respect to section 4(f). In see-
tion II of the determinations the federal defendants set
forth the relevant inquiries demanded by the Supreme
Court’s decision in Overton Park and the Eleventh Cir-
cuit’s decision remanding this case to the Secretary. The
A22
4(f) determinations comply strictly with the guidelines
set forth in these cases. For this reason, the court is
satisfied that the Secretary properly construed her au-
thority to use 4(f) properties only when there were no
other feasible and prudent alternatives.
The court also finds that the Secretary could have
reasonably believed that no such alternatives existed. The
defendants undertook additional analysis of the three al-
ternatives for which the case was remanded for further
findings. Further investigation of the Marbut I plan re-
vealed that by making certain changes in that plan, the
plan would not require the use of any section 4(f) land.
An alternative that does not require the use of sec-
tion 4(f) land must be evaluated under section 4(f) (1)
which requires that the Secretary must approve such an
alternative unless it is shown that the alternative is not
feasible or prudent. ‘‘An alternative is feasible if it can
be built as a matter of sound engineering. ... An alter-
native is prudent unless there are ‘‘truly unusual factors
present in a particular case or the cost or community
disruption resulting from alternative routes reached ex-
traordinary magnitudes,’ or the alternative routes present
‘unique problems.’ ’’ Druid Hills, 772 F.2d at 715 (quoting
Overton Park, 401 U.S. at 411, 413, 91 S.Ct. at 821, 822).
Federal defendants determined that Marbut I was im-
prudent because it failed to meet the needs of the project
and adversely impacted air quality. In analyzing Marbut
I, the defendants made the following findings:
The already severe congestion at Ponce de Leon Ave-
nue and Moreland Avenue/Briarcliff Road and other
ee es
A23
area intersections would worsen. Safety on Ponce de
Leon Avenue would be improved to the west of More-
land Avenue but worsen to the east. Therefore, there
is a shift of the safety problem but not a solution.
Filter through traffic diverting around the bottleneck
at Ponce de Leon Avenue and Moreland Avenue/Briar-
cliff Road would be increased. This results in a con-
tination or worsening of the problem. When viewing
the already unacceptable safety and congestion prob-
lems, this alternative does the worst job of addressing
the project transportation need.
(A.R. I-14 at 19-20.) The defendants also found that the
Marbut I alternative would probably violate National
Ambient Air Quality Standards (NAAQS) for carbon mo-
noxide at the Ponce de Leon Avenue and Moreland Ave-
nue/Briarcliff Road intersection. There are residences in
close proximity to this intersection. For this reason, the
defendants found that the potential exists for adverse pub-
lic health effects. Thus, it was reasonable for the Secre-
tary to find that there was no alternative to the use of
4(f) properties since the only alternative not using 4(f)
properties failed to meet the transportation needs of the
project and adversely impacted air quality in the project
area,
(2) Whether the Secretary’s Decision was Arbitrary,
Capricious or an Abuse of Discretion.
The court must next determine whether the decision
to build the Presidential Parkway rather than another al-
ternative using section 4(f) property is based upon con-
sideration of relevant factors and whether there has been
A24
a clear error judgment. Alternatives using 4(f) properties
are analyzed under section 4(f)(2). That section requires
a balancing process that totals the harm caused by each
alternate route to section 4(f) areas and selects the option
that does the least harm. Druid Hills, 772 F.2d at 716
(citing Louisiana Environmental Society, Inc. v. Coleman
(LES. 11), 587 F.2d 79, 85-86 (Sth Cir.1976) ).
The federal defendants undertook extensive analysis
of the quality and quantity of the section 4(f) properties.*
(A.R. I-14 at 30-62). The following is a summary of the
defendants’ findings: the federal defendants determined
that the Olmstead Park and Parkways are the primary
historic properties effected by the alternatives. The de-
fendants found that all three alternatives use more land
from the Olmstead Park and Parkways than does the Presi-
dential Parkway. (A.R. I-14 at 59.) Additionally, the de-
fendants found that the Decatur Parkway alternative
would require the use of twelve contributing structures
from within the Candler Park Historie District and two
contributing structures from the Moreland Historie Dis-
trict. The Decatur Parkway was found to have substantial
impacts on the Sycamore Historie District. (Jd. at 59-61.)
The defendants found that the Moreland Avenue Termi-
nation Alternate would require land use from Atkins
Park, which would require the relocation of certain con-
tributing gates and walls. (Jd.) The defendants found that
in addition to the Marbut II alternative having a greater
impact on the Olmstead Park and Parkways than would
the Presidential Parkway, Marbut IT would also require the
2. This analysis is summarized in the text of the section 4(f)
determination. (A.R. Il-14 at 30-62).
A25
use of certain contributing structures within the Druid
Hills Historie Distriet. (Jd.)
In contrast, the defendants found that the Presidential
Parkway would not require the use of any structures from
within any historic district. (Jd.) The Presidentia] Park-
way will not require the use of any land or structures from
the Atkins Park Historic District. Although the Presi-
dential Parkway was found to require more land from the
Druid Hills Historie District (excluding the Olmstead Park
and Parkways) than would the three alternates, the de-
fendants found that the Presidential Parkway did not re-
quire the use of contributing structures or landscape with-
in the Druid Hills Historie District.
The court is satisfied after its review of the defen-
dants’ analysis that the defendants’ decision was based
on relevant factors. ‘‘The only relevant factor in making
a determination whether an alternative route minimizes
harm is the quantum of harm to the park or historic site
caused by the alternative.’’ Driud Hills, 772 F.2d at 716.
Only after a route harming parks or historic sites is de-
termined to be the one that minimizes harm does the Sec-
retary have to decide whether the route is feasible and
prudent.
In the defendants’ analysis, the defendants accurately
assessed the characteristics of the 4(f) property effected
by the alternatives and also reviewed the quantity of harm
that will acerue to the park or historic site and the nature
of that harm. 7d. at 718; A.R. II-14 at 21-62. The admini-
strative record contains sufficient information to enable
the Secretary to weigh the damage to the protected prop-
erties under each alternative. Thus, it is clear that the
A26
defendants thoroughly considered whether these alterna-
tive routes would minimize harm to the section 4(f) prop-
erties. After completing their thorough analysis, defen-
dants conelnded that the Presidential Parkway would re-
sult in less harm to parks and historic sites than the al-
ternatives to the Parkway.
There is no evidence that the defendants’ decision was
a clear error in judgment. When reviewing the defendants’
decision this court must only determine whether the Sec-
retary has articulated ‘‘a rational connection between the
facts found and the choice made.’’ Bowman Transporta-
tion, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S.
281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974) (quoting
Burlingion Truck Lines v. United States, 371 U.S. 156, 168,
83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962)). The Secretary’s
decision is entitled to a presumption of regularity, but this
presumption does not shield the decision from a thorough
review. Overton Park, 401 U.S. at 415, 91 S.Ct. at 823.
The court, however, must give deference to agency officials
when deciding matters within their area of expertise and
not substitute the court’s judgment for that of the agency.
National Wildlife Federation v. Marsh, 721 F.2d. 767, 780
(11th Cir.1983). Federal defendants have clearly shown
a rational connection between the harm caused by the dif-
ferent alternatives and their decision to build the Presi-
dential Parkway. The court finds that the defendants’ de-
cision to build the Presidential Parkway is not arbitrary,
capricious, or an abuse of discretion because it was based
upon relevant factors and there is no evidence that defen-
dants’ decision reflects a clear error of judgment.
yh ire > on re aa elt ag me re cae w dale
2
f
q
4
}
A27
(3) Whether Federal Defendants’ Actions Followed
the Necessary Procedural Requirements.
The final inquiry that the court should make when re-
viewing a decision of the Secretary of Transportation is
whether the Secretary’s action followed the necessary pro-
cedural requirements. Overton Park, 401 U.S. at 417. The
plaintiffs did not challenge the Secretary’s compliance with
section 4(f) procedural requirements in their complaint.
See Druid Hills, 772 F.2d at 714-15. As was discussed in
subsection [A of this order, the 4(f) issue first raised in
the complaint still exists concerning the three alternatives
about which this case was remanded for Secretary to make
further findings. Although it appears that the federal de-
fendants have followed the necessary procedural require-
ments, it is not necessary for the court to address this
issue since the plaintiffs have never challenged defendants’
procedural compliance. 3
The court finds that as a matter of law the defen-
dants’ supplemental 4(f) findings regarding the Decatur
Parkway and two Moreland Avenue plans satisfy the three
requirements established by the Court in Overton Park
for reviewing the Secretary’s decisions regarding 4(f)
properties. The court also finds that_the defendants have
complied with the Eleventh Cireuit’s decision in Druid
Hills Civic Association v. Federal Highway Administra-
tion, 772 F.2d 700 (11th Cir.1985). The court finds that
3. A review of the administrative record clearly shows that de-
fendants have complied with the necessary procedural re-
quirements. Plaintiffs have not brought defendants compli-
ance into question on this motion for summary judgment
by submitting any evidence to contest compliance as is re-
quired by Federal Rule of Civil Procedure 56(e).
A28
there is no genuine issue as to any material fact remain-
ing in this case. Accordingly, the court grants defendants’
motion for summary judgment. Celotex Corp. v. Catrett,
— U.S. —, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.
Civ.P. 56(c).
II. Plaintiffs’ Motion for Attorneys Fees, Costs and
Expenses.
Plaintiffs have moved for attorneys fees pursuant to
42 U.S.C. § 1988 against the state defendants and 28 U.S.C.
§ 2412 against the federal defendants. The basis for plain-
tiffs’ motion is that they were the prevailing parties in
connection with the phase of litigation which culminated
when the Eleventh ‘ reuit affirmed in part, reversed in
part, and remanded to the Secretary of Transportation
the prior decision of this court in this ease. Druid Hills
Civic Association v. Federal Highway Administration,
772 F.2d 700 (11th Cir.1985).
A party may be awarded attorneys fees if he has pre-
vailed on the merits of at least some of his claims. Han-
rahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 1989,
64 L.Ed.2d 670 (1980). ‘‘For only in that event has there
been a determination of the ‘substantial rights of the
parties,” which Congress deemed was a necessary founda-
tion for departing from the usual rule in this country
that each party is to bear the expense of his own attorney.’’
Id. In a recent Eleventh Cireuit opinion, the court said
that ‘‘[t]he prevailing party test is ‘whether he or she
has received substantially the relief requested or has been
successful on the central issue’... or stated another way,
whether ‘plaintiff’s lawsuit was a catalyst-motivating de-
Leathe
sale SR dna!
A29
fendants to provide the primary relief sought in a manner
desired by litigation.’ ’’ Martin v. Heckler, 773 F.2d 1145,
1149 (11th Cir.1985) (citations omitted).
In plaintiffs’ complaint, the plaintiffs sought to: (1)
temporarily restrain, and preliminarily and permanently
enjoin defendants from taking any actions toward the con-
struction of the project; (2) set aside as contrary to law
and as an abuse of discretion the defendants’ approval
of the project; (3) award plaintiffs their costs, expenses,
and attorneys fees; and (4) further relief as may be ap-
propriate and just. The relief that the plaintiffs contend
they received from the Eleventh Circuit when that court
remanded the case to the Secretary of Transportation is
that the defendants’ approval of the project was in part
set aside as contrary to law and an abuse of discretion.
In the court of appeals’ decision, the court remanded
the case for the Secretary of Transportation to make ‘‘ade-
quate findings of the impact on 4(f) properties caused by
the Decatur Parkway and the two Moreland Avenue plans.’’
Druid Hills, 772 F.2d at 718. The reason the court re-
manded the case was that it determined the reasonableness
of the defendants’ conclusions concerning these alternates
could not be determined from the EIS statement submitted
to the courts. Jd. The court of appeals did not find that
the Secretary acted arbitrarily, capriciously, or abused her
discretion in making her 4(f) findings. Although the
plaintiffs were successful in delaying progress on the Park-
way pending the defendants new 4(f) findings, this court
cannot find that plaintiffs received any of the relief they
requested in their complaint.
A30
The plaintiffs rely primarily on two Ninth Circuit
eases to support their position on this issue. Save Our
Ecosystems v. Clark, 747 F.2d 1240 (9th Cir.1984) ;
Southern Oregon Citizens v. Clark, 720 F.2d 1475 (9th
Cir.1983). This ease is distinguishable from those cases,
however, because in those cases the plaintiffs had obtained
the relief requested as to certain issues. In this case the
plaintiffs did not achieve significant success on any of the
issues or obtain any of the relief they sought. See Hensley
v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76
L.Ed.2d 40 (1982). For these reasons, plaintiffs’ applica-
tion for fees, costs, and expenses is denied.
Ill. Plaintiffs’ Motion to Amend Their Brief in Support
of Their Motion for Fees, Costs, and Expenses.
The plaintiff filed a motion on August 18, 1986
requesting the court to allow the plaintiff to file an amend-
ment to their brief in support of plaintiffs’ application
for fees, costs and expenses. The plaintiff explained that
the reason they needed to file an additional brief was that
plaintiffs wished to make a brief point concerning federal
defendants liability under 28 U.S.C. § 2412(b). In plain-
tiffs’ motion they said their support for the argument they
wished to make in the requested brief was the recent de-
cision in Savage v. Toan, 636 F.Supp. 156 (W.D.Mo.1986).
The court reviewed this case when considering plaintiff’s
motion for attorneys fees. Because the court found that
plaintiffs were not prevailing parties on any issues in
this case, there was no reason for the court to reach the
further requirements set forth in 28 U.S.C. § 2412(b). The
Salvage decision did not deal with the preliminary issue
Lp ey RR — ee
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aba) he Rit ad nel apoE) ean fs AOU pcre ie inelighlly?” Aee D o athc Aavlt “
A31
of whether plaintiffs were prevailing parties on any issues.
Since the court is disposing of this motion without reach-
ing the further requirements of section 2412 that were dis-
cussed in Savage, there is no reason for the plaintiffs to
file a supplemental brief. For that reason, plaintiffs’
motion to file a supplemental brief is denied as moot.
CONCLUSION
The court grants federal defendants’ motion for sum-
mary judgment. The court denies plaintiffs’ motion for
attorneys’ fees, costs and expenses. The court also denies
as moot plaintiffs’ motion to file a supplemental brief.
A32
APPENDIX C
DRUID HILLS CIVIC ASSOCIATION,
INC., et al., Plainiiffs-Appellants,
Vv.
The FEDERAL HIGHWAY
ADMINISTRATION, et al.,
Defendants-Appellees.
No. 84-8894
United States Court of Appeals
Eleventh Circuit.
Sept. 16, 1985.
Before HENDERSON and HATCHETT, Circuit
Judges, and ALLGOOD", District Judge.
HENDERSON, Circuit Judge:
Druid Hills Civie Association, Inc., et al., in No. 84-
8894 and National Trust For Historic Preservation in the
United States in No. 84-8924 appeal the November 14, 1984
order of the United States District Court for the Northern
District of Georgia denying their motions to enjoin con-
struction of the Presidential Parkway (Parkway), a pro-
posed 2.4 mile highway running east from the I-75/I-85
stub in downtown Atlanta to Ponce de leon Avenue, an
east-west arterial that is part of the Olmsted Park net-
work in Atlanta’s Druid Hills Historie District. On appeal,
the appellants contend that the district court erred in
finding that the named appellees complied with the require-
ments of the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. §§ 4321-4347 (1982), section 4(f) of
the Department of Transportation Act of 1966, 49 U.S.C.
A33
§ 303 (1982),' and section 18 of the Federal-Aid Highway
Act of 1968, 23 U.S.C. § 138 (1982).?
FACTS AND HISTORICAL BACKGROUND?
For a better understanding of the current litigation,
it is necessary to detail the history of the tract comprising
1. Section 4(f) of the Department of Transportation Act, 49
U.S.C. § 1653(f), was repealed in 1983 but was recodified
without substantial change at 49 U.S.C. § 303.
2. Section 18 of the Federal-Aid Highway Act, 23 U.S.C. § 138,
is virtually identical to section 4(f) of the Department of
Transportation Act, 49 U.S.C. § 303. For purposes of this
» any Ayn statutes will be referred to collectively as “sec-
tion 4(f).”
Section 4(f) states:
(a) It is the policy of the United States Government that
special effort should be made to preserve the natural
beauty of the country-side and public park and recreation
lands, wildlife and waterfowl refuges, and historic sites.
(b) The Secretary of Transportation shall cooperate and
consult with the Secretaries of the Interior, Housing and
Urban Development, and Agriculture, and with the States,
in developing transportation plans and programs that in-
clude measures to maintain or enhance the natural beauty
of lands crossed by transportation activities or facilities.
(c) The Secretary may approve a transportation program
or project requiring the use of publicly owned land of a
public park, recreation area, or wildlife and waterfowl
refuge of national, State, or local significance, or land of an
historic site of national, State, or local significance (as de-
termined by the Federal, State, or local officials having jur-
isdiction over the park, area, refuge, or site) only if
(1) there is no prudent and feasible alternative to us-
) ing that land; and
(2) the program or project includes all possible plan-
ning to minimize harm to the park, recreation area, wild-
life and waterfowl refuge, or historic site resulting from
the use.
49 U.S.C. § 303 (1982).
3. This section is taken substantially from the district court
opinion and from the purpose and need section of the en-
vironmental impact statement.
A34
the proposed Parkway. In the late 1960s and early 1970s,
the Georgia Department of Transportation (GDOT) ac-
quired approximately 219 acres as right-of-way for two
multi-lane highways, one oriented north-south (1-485) and
one extending east-west (Stone Mountain Tollway). The
land, known locally as the Great Park, was cleared of
dwellings and other structures and has been vacant ever
since. In 1971, the United States District Court for the
Northern District of Georgia enjoined construction of 1-485
pending completion of an environmental impact statement
(EIS) by the GDOT and the Federal Highway Admini-
stration (FHWA).4 The GDOT prepared an EIS which
was approved by the FHWA. The Secretary of the United
States Department of Transportation (USDOT) never-
theless rejected the EIS in 1973 because it did not satisfy
the requirements of section 4(f).
Asa result of strong opposition to the Stone Mountain
Tollway, Governor Jimmy Carter appointed a commission
to examine the project and make recommendations. The
commission recommended against building the Tollway
until an assessment could be made on the effect of the
impending construction of the MARTA*® east rail line.
Governor Carter accepted the commission’s recommenda-
tion in December, 1972.
In 1973, the City of Atlanta withdrew its support for
1-485 and the Atlanta Regional Commission (ARC) de-
leted the project from its Regional Transportation Plan
4. Morningside-Lenox Park Association, Inc. v. Volpe, 334 F.
Supp. 132 (N.D.Ga. 1971).
5. The Metropolitan Atlanta Rapid Transit Authority.
i
A35
in 1974. The State Transportation Board removed I-485
from the interstate highway system plan in 1974, which
action was approved by the FHWA in 1975. In 1977, the
GDOT began to dispose of all 1-485 properties north of
St. Charles Avenue but retained all the right-of-way south
of that point for future transportation improvements in
the east-west corridor.
Over the succeeding years, numerous alternatives for
the use of the Great Park were developed. In 1974, At-
lanta Mayor Maynard Jackson proposed the ‘‘Great Park’’
concept, a plan that included a variety of recreational
and cultural facilities. In 1975, the City of Atlanta re-
tained Arkhora Associates to prepare a reuse planning
study for the Great Park. Arkhora’s conceptual plan ad-
vocated a passive open space consisting of recreation
areas, cultural facilities and housing. To meet transporta-
tion needs, the Arkhora proposal recommended that the
1-75/1-75 stub be connected to DeKalb Avenue. The GDOT
opposed the recommended action because it did not use
the existing right-of-way to meet transportation needs
and thereby failed to address the legal consequences of
using the land for a non-transportation purpose. In 1977,
the ARC adopted the Decatur Parkway Ceunector and
Decatur Parkway, a road connecting the 1-75/I-85 stub
to an improved DeKalb Avenue, as part of its Regional
Transportation Plan.
Atlanta Great Park Planning, Inc. (AGPP), a public
nonprofit corporation, was formed in 1975 to study and
plan for reuse of the property. AGPP’s board of directors
included representatives of ten neighborhoods, the Cities
of Atlanta and Decatur, DeKalb County and the State of
A36
Georgia. A report published in 1977 acknowledged that the
Great Park could serve not only as a major recreational
area but also as a stimulus for economic development and
cultural revitalization but withheld recommendation pend-
ing further study. In 1978, AGPP retained H. Randall
Roark to study housing opportunities in the right-of-
way. In addition to its housing proposals, Roark’s study,
published in 1979, adopted the transportation, open space
and economic development recommendations contained in
the Arkhora plan and the AGPP’s 1977 report. The
GDOT did not support the Roark plan for the same rea-
sons that it opposed the earlier Arkhora proposal.
In 1978, the GDOT retained Evan L. Marbut and
Associates, Inc. to prepare a park and road development
project for the area. The Marbut Plan consisted of four-
lane north-south and east-west roadways through the ex-
isting right-of-way, with the east-west road terminating
at Moreland Avenue. Remaining right-of-way was to be
developed as a park. The GDOT approved the plan, but
the City of Atlanta and AGPP opposed it because it was
excessively oriented to transportation.
yehn C. Portman, Jr. developed a land use plan for
the Great Park in 1979 at the request of Governor George
Busbee. Alan M. Voorhees & Associates, a transportation
planning firm retained by Portman, recommended that
the I-75/1-85 stub be connected to DeKalb Avenue by way
of a tunnel. The plan also called for housing units and
cultural, recreational and open space uses, including the
proposed Carter Presidential Library.
In 1980, the Georgia General Assembly created the
Great Park Authority to examine the various proposals and
tata iatii eae inti nema amet
a: at i AD i pall
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A37
to develop a master plan for use of the property. The
Great Park Authority retained Howard, Needles, Tammen
& Bergendoff for transportation advice. The authority
report presented to the 1981 General Assembly incorpo-
rated the firm’s recommendation that the I-75/1-85 stub
be connected to DeKalb Avenue along one of three pro-
posed connecting routes and also included a park and
housing facilities. The General Assembly took no specific
action on this proposition.
The current design came into existence in the early
1980s. After leaving office in 1981, President Jimmy Car-
ter began to formulate plans for a presidential library,
museum and policy center (the Complex). President Car-
ter regarded the Great Park property as an ideal location
for the Complex because of its proxiimty to the central
business district and metropolitan Atlanta universities,
its relative seclusion and its accessibility to the interstate
highway network.
In 1981, Andrew Young sought election as mayor of
Atlanta. He ran in part on a platform of opposition to
any roadway through the Great Park. After his election,
Mayor Young reversed his position and in 1982 supported
the so-called Mayor’s Plan, the basic proposal sought to
be enjoined in this litigation. The Mayor’s Plan includes
the Jimmy Carter Complex, a thirty-acre park surround-
ing the Complex, and a 2.4 mile highway consisting of a
pair of two-lane roadways, one eastbound and one west-
bound, which cireumscribe the Complex and park. In ad-
dition, the City of Atlanta is developing a housing plan
for use of the remaining acreage. The Complex and road-
side park would be located on existing right-of-way but
A38
further land acquisition would be necessary to build the
highway.
Throughout the first half of 1982, the Mayor’s office
presented the plan to the Great Park Authority, the ARC,
various neighborhood organizations, neighborhoods and
concerned citizens. On July 6, 1982, the Atlanta City Coun-
cil approved the Parkway plan by a vote of ten to nine.
The plan was then analyzed by the ARC to determine if
it should become part of the Regional Transportation Plan.
In September, 1982, the ARC voted to amend its Regional
Transportation Plan by replacing the proposed Decatur
Parkway Connector and the Decatur Parkway with the
Presidential Parkway. The ARC nonetheless acknowledged
that the Decatur Parkway provided better traffic distribu-
tion by encouraging alternative routing.
In August, 1982, the FHWA placed a notice of in-
tent to prepare an EIS in the Federal Register. On April
21, 1983, the FHWA, the lead agency for the Parkway
project, signed the draft EIS. Approximately 1,000 copies
of the draft statement were distributed to agencies, organi-
zations and individuals. The draft EIS allocated four
pages to a discussion of the building of the Parkway,
but only two sentences to the alternative of not building
it. Other alternatives, including previous plans for the
area, a road extending only to the Presidential library,
au road terminating at Moreland Avenue, intersection im-
provements on existing streets, a two-lane Parkway and
traffic improvements in the Ponce de Leon Avenue/Scott
Boulevard corridor were discussed in four pages of text.
Additional discussion of alternatives, including the pro-
posed Decatur Parkway, was incorporated into the sec-
A39
tion addressing impacts on properties protected by sec-
tion 4(f).
The GDOT and the FHWA conducted three informal
public information meetings between May 31 and June 2,
1983 in neighborhoods adjacent to the project. Court re-
porters were available to transcribe comments. A fourth
public information meeting was held at the Atlanta Civic
Center on June 7, 1983. A public hearing consisting of
a formal presentation followed by a public comment ses-
sion was held later that evening. Court reporters were
available in the lobby and in the auditorium to receive
oral and written comments. Approximately 1,500 to 3,000
people attended the hearing.
Several federal agencies commented on the draft EIS,
including the Department of the Interior (DOI), the En-
vironmental Protection Agency (EPA), the General Ser-
vices Administration and the USDOT. DOI first recom-
mended that the final EIS give consideration to whether
the proposed Parkway would meet transportation needs.
The comments noted that it was not clear that termination
of the Parkway at Ponce de Leon Avenue, an east-west
arterial, would substantially relieve traffic congestion and
provide for future transportation needs in the east-west
corridor. In addition, the DOI stated that discussion of
alternatives in the draft EIS was inadequate and recom-
mended that the final statement contain a more extensive
diseourse of the no-build and Moreland Avenue termina-
tion alternatives. Given these deficiencies, the DOI felt
that the draft EIS failed to adequately address section
4(f) considerations. The EPA found that the draft state-
ment did not adequately evaluate the impact on air quality.
A40
The USDOT took the position that the draft EIS ade-
quately addressed the eftects of the project and measures
to minimize harm. The department’s comments further
stated, however, that the draft EIS did not contain suf-
ficient information to support a determination that there
was no feasible and prudent alternative to the use of lands
protected by section 4(f). Furthermore, the draft state-
ment did not demonstrate a need for the Parkway as op-
posed to improvements to existing facilities. Therefore,
the USDOT suggested a more thorough investigation of
the Decatur Parkway alternative. The department con-
cluded that it appeared that the proposed project would
aggravate, rather than alleviate, traffic conditions on
Ponce de Leon Avenue. The FHWA and the GDOT held
meetings with various agencies to evaluate their comments.
On August 4, 1983, ten days after the expiration of
the period for comment on the draft EIS, the GDOT made
the decision to proceed with preparation of the final EIS
around the build, i.e., Parkway, option. The GDOT and
FHWA also began preparation of a Preliminary Case
Report (PCR) pursuant to section 106 of the National
Historic Preservation Act of 1966, 16 U.S.C. $470f, and
36 C.F.R. § 800 to evaluate the impact of the project on
historic and archaeological resources. The PCR was for-
warded to the Georgia Department of Natural Resources
on October 25, 1983 and to the United States Advisory
Council on Historic Preservation (ACHP) on November
3, 1983. Copies of the PCR were made available to the
public for comment.®
6. The PCR is included as Volume I! of the final EIS.
mi Aan lh Sa
A41
After a review of this preliminary report, the ACHP
recommended that the GDOT and FHWA give further
consideration to the Moreland Avenue termination alter-
native in conjunction with other transportation improve-
ments. FHWA responded that the Moreland Avenue al-
ternative and others had been adequately considered but
were not feasible or prudent. The chairman of the ACHP
referred the matter to the full Council for consideration
at a public hearing in Atlanta on February 27, 1984. Coun-
cil members heard from witnesses and made an on-site in-
spection of the property. By a twelve to four vote, the
Council recommended that the Parkway not be built but
that the Carter Complex shouid be constructed on the
site. The Council’s written findings, forwarded to the
Secretary of the USDOT on March 13, 1984, were largely
critical of the stated need for the project and the attempt
to link the Parkway and the Complex. The FHWA re-
sponded to the comments on April 17, 1984.
On May 22, 1984, the FHWA approved the final EIS.
Copies of the statement were distributed to interested
parties and notice of the approval was published in the
Federal Register. In addition to alternatives raised in the
draft EIS, the final EIS discussed MARTA, a light rail
proposal, one-way pairings of streets, staggered work
hours, and toll charges and provided a more detailed dis-
eussion of the Decatur Parkway alternative.
The DOI, EPA, individuals and organizations sub-
mitted comments on the final EIS. The DOT decided that
the statement did not adequately respond to the depart-
ment’s comments on the draft EIS and was not respon-
A42
sive to the requirements of section 4(f). Acordingly, the
department objected to section 4(f) approval of the project.
On June 25, 1984, the chairman of the ACHP filed
a formal notice of referral with the Council on Environ-
mental Quality (CEQ). The CEQ solicited written com-
ments from the public on the national importance of the
Parkway and held a public meeting on July 17, 1984. On
September 20, 1984, the CEQ determined that the proposed
Parkway was not of national importance and declined to
further review the project. The CEQ requested the FHWA
to resume its normal decisionmaking process. On Septem-
ber 21, 1984, the FHWA, acting through William Van
Luchene, the designee of the Secretary of the USDOT,
approved and executed a record of decision.
These actions for declaratory and injunctive relief
were initiated on September 24 and September 28, 1984.’
Carter Library, Inc., the entity responsible for developing
the Carter Complex, obtained title to the 3.2 acres on which
the Complex would be built via a landswap with the GDOT
on October 2, 1984. Construction commenced the same
day.
The district court consolidated the applications for
preliminary injunction with the trial on the merits. The
7. The plaintiffs included the Druid Hills Civic Association,
Inc.; Inman Park Restoration, Inc.; Candler Park Neighbor-
hood Organization; CAUTION, Inc.; various named individ-
uals; and the National Trust for Historic Preservation.
The named defendants were the FHWA; US-DOT; GDOT;
EPA; R.A. Barnhart, the Administrator of the FHWA; D.J.
Altobelli, Georgia State Division Director of the FHWA;
Elizabeth Dole, Secretary of the USDOT; Thomas D. More-
land, Commissioner of the GDOT; and Carl Jeter, Regional
Administrator of the EPA.
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A43
trial was held October 22-25, 1984. By order dated Novem-
ber 14, 1984, the district court denied the motion to en-
join construction of the Parkway. The appeal was ordered
expedited by this court. Both the district court and a panel
of this court denied the appellants’ motions for injunction
pending appeal.
Il. Section 4(f)
A. Standard of Review
Section 4(f) evidences Congress’ response to growing
public concern over the preservation of our nation’s park-
lands, recreation areas, wildlife and waterfowl refuges,
and historic sites (also referred to as section 4(f) proper-
ties). In enacting this section, Congress determined that
section 4(f) properties should be accorded paramount con-
sideration in connection with all federally financed trans-
portation projects. Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 412-13, 91 S.Ct. 814, 821-22, 28
L.Ed.2d 136, 151 (1971). Thus, the Secretary of Transpor-
tation'® can approve a federal highway project requiring
the use of parklands or historic sites only if (1) no feasible
and prudent alternative to the use of the land exists, and
(2) the project includes all possible planning to minimize
harm to the property. 49 U.S.C. § 303; 23 U.S.C. § 138.
The Supreme Court enunciated the standard of judic-
ial review of the Secretary’s section 4(f) determination in
Overton Park. While the Secretary’s decision is entitled
16. William R. Van Luchene, acting as the Secretary of Trans-
poration’s designee, made the final determination to pro-
ceed with the Parkway project. For the sake of conven-
ience, we use the term “Secretary” throughout this section.
A44
to a presumption of regularity, that presumption does not
‘‘shield his action from a thorough, probing, in-depth re-
view.’’ 401 U.S. at 415, 91 S.Ct. at 823, 28 L.Ed.2d at 153.
A reviewing court must first consider whether the Secre-
tary acted within the scope of her authority. Under this
facet of the review, the court must determine whether the
Secretary properly construed her authority to approve the
use of section 4(f) property as limited to situations where
there are no feasible and prudent alternatives, and whether
the Secretary could have reasonably believed that no such
alternatives exist. Jd. at 415-16, 91 S.Ct. at 823, 28 L.Ed.2d
at 153. The court must next determine whether the Secre-
-tary’s ultimate decision was arbitrary, capricious or an
abuse of discretion. This assessment requires an evalua-
tion of whether ‘‘the decision was based on a consideration
of the relevant factors and whether there has been a clear
error of judgment.’’ /d. at 416, 91 S.Ct. at 823-24, 28 L.Ed.
2d at 153. Although the judicial inquiry should be pene-
trating, the court is not empowered to substitute its judg-
ment for that of the Secretary. Jd. at 416, 91 S.Ct. at 824,
28 L.Ed.2d at 153. The third and final inquiry is whether
the Secretary’s action followed the necessary procedural
requirements. Jd. at 417, 91 S.Ct. at 824, 28 L.Ed.2d at 154.
In reviewing the district court’s decision affirming the
Secretary’s section 4(f) action, ‘‘ ‘the focal point for ju-
dicial review should be the administrative record already
in existence [on the basis of which the administrator’s de-
termination was made], not some new record made in-
itially in the reviewing court.’ ’’ Lowistana Environmental
Society, Inc. v. Dole., 707 F.2d 116, 119 (Sth Cir.1983)
(LES III) (quoting Camp v. Pitts, 411 U.S. 138, 142, 93
S.Ct. 1241, 1244, 36 L.Ed.2d 106, 111 (1973)). Since the
A45
appellate court applies the same standard of review as the
district court, we need accord no particular deference to
the district court’s conclusions as to whether the adminis-
trative record supports the Secretary’s decision. Jd. If
the record fails to show a sufficient basis for the adminis-
trative decision, the 4(f) determination must be over-
turned. The
reviewing court, in dealing with a determination or
judgment which an administrative agency alone is
authorized to make, must judge the propriety of such
action solely by the grounds invoked by the agency. If
those grounds are inadequate or improper, the court
is powerless to affirm the administrative ‘action by
substituting what it considers to be a more adequate
or proper basis.
Securities € Exchange Commission v. Chenery Corp., 332
U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995, 1999
(1947).
B. Analysis
The plaintiffs-appellants object to the district court’s
findings that the Secretary reasonably complied with the
requirements of section 4(f). They do not voice any ob-
jections to the Secretary’s compliance with procedural re-
quirements. Rather, they first claim that the state and
federal defendants violated section 4(f)(1) because there
was no reasonable basis for the conclusion that there exists
no feasible and prudent alternative to the use of parks and
historic sites. Specifically, they assert that the appellees
failed to examine several feasible and prudent alternatives
that would avoid harm to section 4(f) areas and improp-
erly rejected other alternatives. Second, the appellants
A46
contend that the agencies failed to incorporate all possible
planning to minimize harm to protected areas as mandated
by section 4(f)(2).
(1) Section 4(f)(1)
Section 4(f)(1) requires a finding of no feasible or
prudent alternatives to the use of parklands and historic
sites before the Secretary can approve the use of such
property for highway purposes. An alternate route that
also impacts upon parks and historic sites is not an ‘‘al-
ternative to the use’’ of such property. Louisiana En-
vironmental Society, Inc. v. Coleman, 537 F.2d 79, 85 (5th
Cir.1976) (LES 11). Thus, in making the section 4(f)(1)
assessment, the Secretary is concerned with those alterna-
tives that do not also impact on parks and historic sites.
The Supreme Court defined ‘‘feasible’’ and ‘“ pru-
dent’’ in Overton Park. An alternative is feasible if it can
be built as a matter of sound engineering. 401 U.S. at 411,
91 S.Ct. at 821, 28 L.Ed.2d at 150. An alternative is pru-
dent unless there are ‘‘truly unusual factors present in a
particular case or the cost or community disruption result-
ing from alternative routes reache[{d] extraordinary mag-
nitudes,’’ or the alternative routes present ‘‘ unique prob-
lems.’’ /d. at 413, 91 S.Ct. at 822, 28 L.Ed.2d at 151.
The section 4(f) statement contained in the EIS” dis-
cussed five alternatives to the Parkway project: the no-
build option, the Decatur Parkway, two plans for roads
terminating at Moreland Avenue and widening of Ponce de
17. The Preliminary Case Report, included as Volume I! of the
final EIS, also addresses alternatives to avoid the project's
impact on historic properties. The information contained
in the PCR essentially duplicates that found in the EIS.
ae re
° . we Fe ie ie »
A47
Leon Avenue with improved signalization. Of these, the
no-build option is the only alternative to the use of section
4(f) areas because the other proposals contemplated the
*‘use’’ of parklands and/or historic districts to some de-
gree. LES II, 537 F.2d at 85. The district court examined
the consequences of not building the highway and found
that the Secretary could reasonably have concluded that
the no-build option was not prudent because it failed to
meet the need which the project was designed to address
and because it might have resulted in loss of the Carter
Complex or reduction in its scope.
Despite protestations to the contrary, the district
court properly interpreted LES II to provide support for
its conclusion that the Secretary could reasonably have re-
jected the no-build option as imprudent for failure to ful-
fill the need for a highway in Atlanta’s east-west corridor.
In LES II, the former Fifth Cireuit Court of Appeals held
that the Secretary could reasonably have determined that
two alternatives, one of them the no-build option, were im-
prudent because they did not serve the project’s purpose.
Id. The appellants’ reliance on the recent decision in Stop
H-3 Association v. Dole, 740 F.2d 1442 (9th Cir.1984), cert.
denied, — U.S. —, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985), in
an attempt to cast doubt on the correctness of the district
court’s determination ignores clear precedent binding on
this cireuit."* Accordingly, since the no-build alternative
18. The district court in Dole found that rejection of the no-
build alternative was reasonable because the need for the
road had been sufficiently established. Stop H-3 Associa-
tion v. Lewis, 538 F.Supp. 149, 180 (D.Hawaii 1982). Ina
footnote to its discussion of the no-build option, the Ninth
Circuit Court of Appeals said:
(Continued on following page)
A48
could reasonably have been found imprudent, we affirm
this portion of the district court’s order.”
(Continued from previous page)
The mere fact that-a—need’ for a highway has been
‘established’ does not prove that not to build the highway
would be. ‘imprudent’ under Overton Park. To the con-
trary, it must be shown that the implications of not build-
ing the highway pose an ‘unusual situation,’ are ‘truly un-
usual factors,’ or represent cost or community disruption
reaching ‘extraordinary magnitudes.’
740 F.2d at 1455 n. 21 (citing Overton Park, 401 U.S. at 411-
13, 91 S.Ct. at 821-22, 28 L.Ed.2d at 150-51). This footnote ap-
peared in a portion of the opinion joined by only two judg-
es. Judge Wallace, who did not concur in the majority's
analysis of the no-build alternative, was of the opinion that
a project-wide no-build option did not provide a prudent
alternative to a highway for purposes of the section 4(f)
analysis because section 4(f) deals with the manner of build-
ing the project rather than whether to undertake it in the
first place. /d. at 1466-68 (emphasis added).
Even were we to agree that Stop H-3 Association offers a
view more consistent with Overton Park, we would still be
bound by our decision in LES Ii. See Bonner v. City of
Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc). Only
this court sitting en banc or the United States Supreme Court
can overrule precedent binding on this court. Julius v. John-
son, 755 F.2d 1403, 1404 (11th Cir.1985) (per curiam).
19. The district court concluded that loss of the Complex could
constitute a truly uuique or unusual factor. The continued
with the statement, “Thus, even if No-Build were prudent,
the magnitude and uniqueness of the Carter Complex could
justify an exception to the prudent requirement.”
Given our disposition of the section 4(f)(l) claim, it is not
necessary that we determine whether possible loss of the
Complex or reduction in its scope is enough to render the
no-build option imprudent. Indeed, it is not certain that
such an occurrence would come to pass. See Final EIS, Vol.
|, at 85 (‘There would also be a possibility that the no-build
might include a presidential library and policy center at or
near its presently proposed location.”). We do note, how-
(Continued on following page)
t-te ay md eel
A49
(2) Section 4(f)(2)
Section 4(f)(2) imposes the duty to utilize all possible
planning to minimize harm to parks and historic sites be-
fore the Secretary can approve a route using section 4(f)
property. Relocation of the highway through another por-
tion of the section 4(f) area or through other section 4(f)
properties must be considered as a means of minimizing
harm. LES 11, 537 F.2d at 85. As explained by the court
in LES II, section 4(f)(2) requires a simple balancing pro-
cess which totals the harm caused by each alternate route
to section 4(f) areas and selects the option which does the
least harm. /d. at 85-86. The only relevant factor in mak-
ing a determination whether an alternative route mini-
mizes harm is the quantum of harm to the park or historic
site caused by the alternative. Considerations that might
make the route imprudent, e.g., failure to satisfy the pro-
ject’s purpose, are simply not relevant to this determina-
tion. Zd. at 86. If the route does not minimize harm, it
need not be selected. The Secretary is free to choose
among alternatives which cause substantially equal dam-
age to parks or historic sites. Jd.
The court in LES I] made it clear that the Secretary
does not have to accept an alternate route which causes
less harm to parks and historic sites. Rather, the court
construed section 4(f)(2) to mean that the route must also
(Continued from previous page)
ever, that Congress enacted no exceptions to the require-
ment that there be no prudent alternatives to the use of
parks and historic sites before the Secretary can approve
a project using protected properties. As such, possible loss
of the Complex would be a factor to consider in determin-
ing whether no-build was imprudent, not an event warrant-
ing an exception to the prudence requirement.
A50
be feasible and prudent. Thus, a route that does minimize
harm can still be rejected if it is infeasible or imprudent.
The determination whether the route is infeasible or im-:
prudent is based on factors,other than the route’s impact
on section 4(f) areas. /d.
Applying this legal standard to the proposed Decatur
Parkway, Moreland Avenue and Ponce de Leon Avenue
alternatives, the district court found that the Seeretary’s
determination that the alternatives either did not mini-
mize harm or were imprudent was reasonable. As pointed
out above, section 4(f)(2) requires the Secretary to utilize
a balancing process that totals the harm caused by each-
alternative so that an option can be selected which does the
least harm. /d. at 85-86. From this it is evident that the
administrative record must contain adequate information
to enable the Secretary to weigh the relative damage to
protected properties which would result from building each .
of these roads. The record here is replete with references
to the preferred route’s impact on section 4(f) properties
and to the efforts to minimize this harm. By comparison,
the generalized and often contradictory attention directed
to the section 4(f) impacts associated with the Decatur
Parkway and Moreland Avenue routes is significantly de-
ficient and is examined, for the most part, under the feasi-
ble and prudent standard. With the present record, it is
difficult to see how the Secretary could have made the
proper evaluation mandated by section 4(f)(2) of the
harm caused by each of these options. A meaningful bal-
ancing of the damage done by the preferred route with that
caused by the alternatives was therefore impossible. Ac-
cordingly, we are unable to review the correctness of the
district court’s findings as to the Decatur Parkway and
Adl
Moreland Avenue plans because we conclude that the See-
retary did not make the requisite findings necessary for an
informed comparison of the relative harms anticipated by
the construction of the various routes. It is the deficiency
in this ‘‘testing’’ process that afflicts the integrity of the
KIS. Id. at 86.7°
The GDOT and the FHWA concluded that their five-
lane version of the Decatur Parkway was not a feasible
and prudent alternative because it would have used land
from one or more historic districts, would have cost more
than the preferred alternative, would have destroyed res-
idences and businesses, and would have impacted an
archaeological site and rapid transit facilities. Final EIS,
Vol. I, at 199. The EIS generally describes the various
historic sites which would be affected, either by acquisition
of right-of-way or visually, and represents that a number
of structures would have to be removed. The EIS also
states, however, that many of these areas were physically
and visually impacted by construction of MARTA’s east
20. It is not entirely clear whether the Secretary rejected the
various alternatives because they failed to minimize harm or
because they were imprudent. The EIS states that the var-
ious alternatives are not feasible and prudent but then pro-
ceeds to list reasons that largely relate to the alternatives’
impacts on parks and historic sites. As cautioned by the
court in LES /I, a route that minimizes harm may be rejected
as imprudent only for reasons other than its impact on 4(f)
properties. 537 F.2d at 86. On the remand, the Secretary
must furnish a more specific analysis of the impact on 4(f)
areas occasioned by the various alternatives. If this review
results in the conclusion that the harm caused by an alter-
native is substantially equal to that caused by the preferred
route, the Secretary is free to choose among the routes. If
the alternative does minimize harm, however, it can be re-
jected as imprudent only for truly unusual reasons other
than its impact on parks and historic sites.
A52
rail line. Jd. at 196. Indeed, with respect to possible ef-
fects on the Sycamore Street Historie District, the EIS
states that ‘‘{b]oth the boundary and the eligibility of the
‘district would need reevaluation before effeets could be
determined realistically."* Id. at 197. In discussing the
effect on the archaeological site, the EIS states that, ae-
cording to proéedures mandated by section 106 of the Na-
tional Historie Preservation Act, 16 U.S.C. § 470f, a find-
ing of no adverse impact could be anticipated. Moreover,
measures to mitigate harm to the site were taken following
evaluative testing. Jd. at 198. This candid, albeit too
limited, discussion of the characteristics of the property
that would be taken by construction of the Decatur Park-
way, when coupled with the lack of specificity about the
quantity of the affected area, convinces us that the Secre-
tary has not conformed to the requirement that all possible —
planning to minimize harm be accomplished before the .
Secretary chooses a route impacting on 4(f) areas.”
The EIS diseussed two road plans which would termi-
nate at Moreland Avenue. The first, known as the Marbut
Plan, consists of an east-west roadway terminating at
Moreland Avenue with a related north-south road on exist-
ing right-of-way. The plan calls for a future extension
eastward to Lullwater Road. The second proposal, which
we will refer to as the Moreland Avenue Plan, entails con-
21. The district court found that the Secretary could reasonably
have rejected the Decatur Parkway as imprudent because
it did not fulfill transportation needs in the east-west cor-
ridor. Under the proper section 4(f)(2) analysis, a conclu-
sion that an alternative was imprudent could prevent its
acceptance even if it was less harmful. If we followed the
district court’s reasoning, there would be no need for fur-
ther inquiry into the minimization of harm issue.
A53
struction of an east-west road ending at Moreland Avenue
and the widening of Moreland and Ponce de Leon Avenue
between Moreland and Clifton Road. The district court
found that the Secretary could reasonably have determined
that neither of the plans would minimize harm to section
4(f) areas and that the Moreland Avenue Plan was also
imprudent beeause it did not fulfill the need for a road.
Again, we cannot evaluate the reasonableness of these
conclusions because the EIS does not provide the predicate
facts on which to make.a reasoned judgment. Although
discussion of the Marbut Plan’s effect on parks and his-
toric sites is lacking in substance, it would provide a more
adequate basis for a finding that an alternative did not
minimize harm than would the comments @oncerning the
impact of the Moreland Avenue Plan.?? The EIS acknowl-
edges that the Moreland Avenue Plan would cause the
same disruption as the Presidential Parkway up to its
termination at Moreland. Jd. at 204. The comments con-
cerning this route’s additional effects on historic sites
bordering Moreland and Ponce de Leon Avenues are
largely conclusory, however. For instance, the EIS states
that widening of Moreland Avenue would adversely affect
the North Highlend/North Avenue Historie District but
there is no mention of the type of impact, the characteris-
ties of the property or the degree of harm that will accrue
to the historic area.
22. Our task of determining whether there was compliance with
section 4(f) was made all the more difficult by the fact that
consideration of the two Moreland Avenue plans was
merged into cne section with little to differentiate what
discussion relaied to which plan.
NG:
Ad4
Finally, the ‘district court found that the Secretary
could reasonably have concluded that widening Ponce de
Leon Avenue, along with improved signalization, would
have a greater effect on the Olmsted Park network and
the Druid Hills Historie District. This alternative would
impact on five of the Olmsted Parks and some land would
be taken from the northern side of Ponce de Leon. The
discussion of the quantum of harm caused to 4(f) areas by
widening Ponce de Leon is the most acceptable of the 4(f)
statements in the EIS. The Advisory. Council on Historie
Preservation is opposed to the Parkway but acknowledged
that widening Ponee de Leon would undermine the integ-
rity of the Druid Hills Historie District. Zd., Appendix B,
at 333, 334. We agree with this portion of the district
court's Opinion.
In summary, the case must be remanded to the Secre-
_ tary for adequate findings of the impact on 4(f) proper-
ties caused by the Decatur Parkway and the two Moreland
Avenue plans. This review should encompass an accurate
assessment of the characteristics of the property that will
be affected by the alternative, e.g., if the property is in a
historic district, whether it has been previously impacted
by commercial development and if so, to what extent. The
Secretary’s review must also address the quantity of harm
that will acerue to the park or historie site and the nature
of that harm, e.g., visual impact or physical taking. It will
not suffice to simply state that an alternative route would
affect 4(f) properties without providing some rational,
doeumented basis for such a conclusion. In short, the same
consideration must be given to whether these alternative
routes would minimize harm to the section 4(f) properties
as was accorded the adopted route.
G
Add :
After reviewing the. voluminous record in this case,
we are mindful of the tremendous task confronting the
Secretary in resolving these difficult issues. However, the
magnitude of the problem does not diminish the need to
follow the stringent requirements of section 4(f)(2). All
of the proposed routes involved in this litigation will affect
parklands and histori¢ sites to some degree. It is import-
ant then that all of these options be carefully examined in
an effort to minimize the damage to section 4(f) lands.
This is the command of Overton Park and LES II and we
are not free to ignore that directive.
For the foregoing reasons, we AFFIRM in part,
REVERSE in part, and REMAND to the district court for
proceedings consistent with this opinion.
A56
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DRUID HILLS CIVIC
ASSOCIATION, INC.,, et al.
CIVIL
NO. C-84-1931-A
VERSUS
FEDERAL HIGHWAY
ADMINISTRATION, et al.
NATIONAL TRUST FOR
HISTORIC PRESERVATION
CIVIL
VERSUS NO. C-84-1977-A
FEDERAL HIGHWAY
ADMINISTRATION, et al.
(Filed November
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) 14, 1984)
ORDER
Plaintiffs filed these actions on September 24 and 28,
1984, to enjoin construction of the Presidential Parkway
project (the Parkway). Pursuant to Fed.R.Civ.P. 65(a)
(2), the trial of the case on its merits was advanced and
tried with plaintiffs’ motion for preliminary injunction.
This trial was held on October 22-25, 1984. Upon careful |
evaluation, the court denies plaintiffs’ motion to enjoin
construction of the Parkway.
FINDINGS OF FACT
To understand the instant action, a history of pro-
posed transportation improvements in the area is neces-
sary. A major portion of the land upon which the pro-
Ad7T
posed Parkway would be built was acquired by the defen-
dant Georgia Department of Transportation (GDOT) in
the 1960s and early 1970s. This area, approximately 219
acres, had been obtained as rights-of-way for multi-high-
way facilities, one extending north-south, the other east-
west. The major proposed highways were I-485 “and the
Stone Mountain Tollway. In 1971, the United States Dis-
trict Court for the Northern District of Georgia enjoined
any further action on I-485 (the north-south road) until
GDOT filed an environmental impact statement (EIS).
GDOT prepared an EIS, which defendant Federal High-
~way Administration (FHWA) approved. The Secretary
of the United States Department of Transportation
(USDOT) rejected the EIS in 1973 because it did not con-
sider fully various impacts and alternatives.
GDOT also had proposed the Stone Mountain Toll-
way. At a 1972 hearing concerning this project, strong op-
position was voiced. As a result of this controversy, Gov-
ernor Jimmy Carter appointed a commission to investigate
the project and make recommendations. The commission
noted that the Tollway should not be built at that time.
Governor Carter accepted the Commission’s recommenda-
tion in December, 1972.
The City of Atlanta withdrew its approval of 1-485 in
1973. The Atlanta Regional Commission (ARC) deleted
the project from.its regional plans in 1974. Also in 1974,
GDOT removed I-485 from the interstate highway system
plan, which action was approved by the FHWA in 1975.
In 1977, procedures to dispose of I-485 properties north of
St. Charles Avenue began. GDOT retained the acreage
south of St. Charles. Avenue for possible transportation
improvements in the east-west corridor.
A58
From the demise of the expressway plans until the
present, numerous reuses of the acreage were suggested.
Atlanta Mayor Maynard Jackson proposed a ‘‘Great
Park’’ concept in 1974, which would include various recrea-
tional and cultural amenities. In 1975, the City of Atlanta
created an Ad Hoc Committee for the so-called Great Park,
to stiidy inter alia transferal of land from GDOT, and re-
use with primary emphasis on a park. Upon the Commit-
tee’s recommendation, the city contracted with Arkhora
Associates to prepare a reuse planaing study. Arkhora
presented ‘‘The Great Park—A Proposal bythe City of
Atlanta for the Redevelopment of Unused -Highway
Rights-of-Way Within the City.’’ This plan advocated a
major passive open space consisting of passive recreation
areas, cultural facilities, and housing. GDOT opposed this
plan because it did not address legal problems of reusing
the land for non-transportation purposes. In 1977, ARC
adopted its Regional Transportation Plan (RTP) showing
the I-75/85 stub, which had been constructed earlier, con- —
necting to an improved DeKalb Avenue with no specific
alignment for the connection.
In October 1975, Atlanta Great Park-Planning, Ine.
(AGPP), a publie non-profit corporation, was formed to
plan for disposition and reuse of the property. The
AGPP’s Board of Directors included representatives of
ten neighborhoods, the City of Atlanta, the City of De-
eatur, DeKalb County, and the State of Georgia. AGPP
prepared a report in 1977, noting that the Great Park area
could serve not only as a recreation area but could be a
stimulus for redevelopment and revitalization. In 1978,
AGPP authorized H. Randall Roark to prepare a study of
housing opportunities in the right-of-way. The study, pub-
A59
lished in 1979, focused on housing, but adopted the trans-
portation and open space recommendations from the -
Arkhora study. GDOT did not support this plan for the
reasons underlying its opposition to the Arkhora plan.
GDOT retained Evan L. Marbut & Associates, Ine. in
1978 to prepare a park and road concept for the Great
Park area. This plan proposed connecting the stub to
Moreland Avenue, as well as placing a north-south road in
the right-of-way. The remainder of the land would be de-
veloped as parks. GDOT approved the plan, but the City
of Atlanta and AGPP opposed it as being excessively
transportation-oriented.
At the request of Governor Busbee, John Portman, Jr.
developed a land use plan for the property. This proposal
called for housing units, and a ‘‘greenway’’ of cultural,
recreational, and open space uses, including a festival
area, amphitheatre, Georgia Hall or museum, cyclorama,
aquarium, and the Carter Presidential Library. In con-
nection with this plan Alan M. Voorhees & Associates con-
cluded that a stub connection with DeKalb Avenue would
meet the corridor’s transportation needs. In Portman’s
plan, the stub would be connected to DeKalb Avenue via
a tunnel. In 1980, GDOT presented a ‘‘modified’’ Marbut
plan with connections to Ponce de Leon, Moreland, and
DeKalb Avenues.
The Georgia General Assembly created the Great
Park Authority (GPA) in 1980 to examine the various
plans for reuse of the Great Park, and to develop a master
plan for submission in 1981. GPA retained Howard, Need-
les, Tammen and Bergendoff (HNTB) for advice concern-
ing transportation. HNTB recommended a stub connection
A60
to DeKalb Avenue with three possible connection routes.
The GPA plan, presented in 1981, incorporated this recum-
mendation, as well as a park and housing for the Great
Park. The General Assembly took no specifie action on
this plan.
The Parkway plan itself came into existence in the
early 1980s. After President Carter left office in 1981, ‘he
began to formulate plans for a presidential library and
museum, and a policy center (the Complex). He was in-
terested particularly in the Atlanta area, because of its
concentration of universities, its accessibility, and its posi-
tion as state capital. At least by mid-summer 1981, the
‘dea arose to build the complex within the Great Park
tract. (Testimony of Danny Lee, Transcript, Volume III,
at 140). The site was considered ideal because of its prox-
imity to the central business district and universities, and
its relative seclusion.
In 1981, Thomas Moreland, Commissioner of GDOT
(Moreland) met with Charles Kirbo (Kirbo) an associate
of President Carter, at Troncalli Motors. According to
Moreland’s testimony, Kirbo told him that the Great Park
area would be a good site for the Complex. (Test. of
Thomas Moreland, T-II, at 227). Kirbo stated that a
transportation connection with Emory would be needed.
Moreland testified that he did not promise or tell Kirbo
that he would put a road in that tract, if the Carter people
cooperated. (Jd. at 230).
In 1981 Andrew Young sought election as mayor of
Atlanta, in part on a platform of opposition to any road-
way through the Great Park. After his election, Mayor
Young reversed his position and in 1982 supported the so-
La EES
A61
called Mayor's Plan. This proposal basically is the al-
ternative sought to be enjoined in the instant lawsuit. It
included a 2.4 mile four lane parkway. The Complex would
be situated in the center of the tract, approximately thirty
acres. Throughout the first half of 1982, the mayor’s of-
fice presented the plan to the GPA, ARC, various neigh-
borhood organizations, neighborhoods, and concerned citi-
zens. A public hearing was held on June 29, 1982 at City
Hall. On July 6, 1982, the Atlanta City Council approved
the plan. GDOT also approved the plan. In September,
1982, the ARC amended its RTP to delete the Decatur
Parkway/DeKalb Avenue Connector and to insert the
Parkway in lieu thereof.
In August, 1982, the FHWA placed a notice of intent
to prepare an EIS in the Federal Register. The notice set
up the framework for commenting on the proposal, refer-
enced the earlier meetings, and stated that a public hear-
ing would be held. It also named David Densmore, high-
way engineer with FHWA (Densmore), as contact person
for the project.
Throughout the remainder of 1982 and the beginning
of 1983, GDOT and FHWA, the latter as lead agency, pre-
pared the Draft Environmental Impact Statement (DEIS).
On April 21, 1983, FHWA signed the DEIS. Approxi-
mately 1,000 copies were distributed to agencies, organiza-
tions, and individuals. The DEIS contained 193 pages of
text, inclusive of photographs, charts, maps, bibliograph-
ies, and lists of meetings and preparers. Nine appendices
totaling approximately 89 pages were attached, including
correspondence, plans, and various technical charts and
figures. The DEIS diseussed the build, or Parkway altern-
ative, in some detail, the no-build alternative in two sen-
~/
A62
tences, and ‘‘other alternatives,’’ in a few pages, including
a road only to the library, a road to Moreland, Avenue, im-
provements on existing streets, a two lane parkway, and
the Decatur Parkway. Some additional discussion of al-
ternatives occurred within sections addressing impact on
specifie properties.
Because a large number of comments concerning the
project were received both before and after the presenta-
tion of DEIS, GDOT and FHWA conducted four public
information meetings. The first three were held between
May 31 and June 2, 1983, in neighborhoods adjacent to the
project. Court reporters were available and comments
were received. The meetings generally were well-attended.
The fourth meeting was held on June 7, 1983, at the At-
lanta Civic Center. Later that day, the public hearing was
held, consisting of a formal presentation followed by a
public comment session. Court reporters were available in
the lobby and auditorium to receive oral comments; writ-
ten ones also were accepted. Between 1,500 and 3,000 peo-
ple attended this hearing. The hearing record and public
comment period were left open until July 25, 1983. Ap-
proximately 2,000 persons commented on the project. In
August, 1983, GDOT made the decision to proceed with the
final EIS (FEIS) around the build option (Test. of Peter
Malphurs, State Environmental Analysis Engineer, GDOT
(Malphurs) T-ILI, at 188-89).
Among those commenting on the project were various
federal agencies, including the Department of Interior
(DOI), the General Services Administration (GSAY, and
the Environmental Protection Agency (EPA). Many com-
ments expressed reservations concerning several aspects
of the project, including air quality studies, and impacts on
A635
parks and hisforie properties. Meetings between FHWA,
GDOT, and agencies were held to discuss these comments.
GDOT and FHWA also prepared a separate environmen-
tal review concentrating on historic resources. This re-
view, or Preliminary Case Report (PCR) was sent to the
Georgia Department of Natural Resources (DNR) on
October 25, 1983. DNR commented on the PCR, which was
revised to reflect these comments. The PCR was for-
warded to the Adyisory Council on Historie Preservation
(ACHP) for comment in November, 1983. The PCR was
made available to the public, and the ACHP received
many comments thereon.
The ACHP reviewed the PCR, and recommended that
GDOT and FHWA give further consideration to the More-
land Avenue termination alternative, with other transper-
tation improvements. FHWA responded that it and GDOT
had given sufficient attention to the Moreland Avenne al-
ternative, as well as others, but had concluded that they
were not feasible and prudent to fulfill transportation
goals.
The Chairman of the ACHP determined that the full
council should consider the matter at a public hearing.
This meeting was held on February 27, 1984. The ACHP
voted 12-4 to recommend that the Parkway not be built, but
that the Carter Complex be constructed on the site. FHWA
responded to the ACHP comments on April 17, 1984.
The final E.I.S. (FEIS) was approved on May 22,
1984, and distributed to interested parties. The FEIS,
Volume I, contained 345 pages of text, including analyses,
bibliographies, charts, graphs, and lists. The appendices
covered approximately 470 pages, and contained iter alia,
A64
comments and responses, studies, and charts. In addition,
the PCR, submitted as Volume II of the FEIS, contained
115 pages of text, including pictures, bibliography, and
charts. Approximately 90 pages of the PCR were com-
ments and responses, an additional 100 pages was an ar-
chaeological survey, and reports on historic districts and
comments consumed approximately 300 pages. In addi-
tion to alternatives mentioned in the DEIS, the FEIS dis-
eussed additional road improvements, MARTA, one way
pairings, staggered work hours, charges for driving, and
a more detailed discussion of the Decatur Parkway-De-
Kalb Avenue alternative.
Notice of the approval of the FEIS was published in
the Federal Register. Comments on the FEIS were sub-
mitted by the EPA, DOI, individuals, and organizations.
On June 25, 1984, the Chairman of the ACHP filed a No-
tice of Referral with the Council on Environmental Qual-
ity (CEQ). The CEQ held a public hearing on July 17,
1984 to consider whether to accept the referral. It also
solicited comments on the matter, and received numerous
responses. On September 20, 1984, the CEQ determined
that the proposed Parkway was not of such national sig-
nificance to warrant its interjection into the process. The
CEQ further requested that the FHWA continue its nor-
mal decisionmaking process. The FHWA, through the
Secretary of USDOT’s designee, William Van Luchene,
approved and executed a record of decision on September
21, 1984.
Carter Library, Inc., the developing aid coordinating
entity for the Complex, obtained title to 3.2 acres of the
tract on October 2, 1984 via a landswap with GDOT (the
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‘‘Footprints’’). The Complex itself would be constructed
on the Footprints. Construction commenced on that date.
The remaining acreage surrounding the Footprints, and
circumscribed by the Parkway, is to be a ‘‘roadside park,’’
titled in GDOT, and maintained by Carter Library, Inc.
GDOT has advertised for bids on the parkway construe-
tion. Bids were opened on October 26, 1984. ‘The award-
ing of contracts is pending and must be made within thirty
days from that date.
1. §4(f)(1) ANALYSIS
Defendants considered that the No-Build alternative
was imprudent because it would not address transportation
needs, thus resulting in further traffic and safety prob-
lems. It was considered to cause major disruption because
it might lead to a reduction in scope or loss of the Carter
Complex, and its cultural and educational resources. <A
direct link with the central business districts and the uni-
versities would not have occurred. It would have resulted
in a loss of amenities surrounding the Parkway.
The No-Build alternative certainly is feasible; nothing
need be constructed. An alternative that does not fulfill
the need which a project is designed to address, however,
is not a prudent alternative, LES, 537 F.2d at 85. (‘...
the no-build alternative [was] imprudent because [it]
failed to fulfill the needed purpose of a circumferential
highway route’’). The court previously has found de-
fendants’ contention that a transportation need exists to
be reasonable. Therefore, defendants’ rejection of No-
Build as imprudent also is reasonable.
Additionally, defendants contend that No-Build is
not prudent because the loss of the Carter Complex, amen-
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ities, and housing, and the traffic and safety problems
would amount to disruption to the community of extraor-
dinary magnitude, or would be unique factors. This argu-
ment has some merit. Safety and traffic considerations
themselves are not enough to overcome § 4(f) protections.
The Carter Complex itself, however, would be a cultural
and historic amenity of far reaching significance to the
community, to Atlanta, and to the state. Although a dearth
of case law on such an unusual situation exists, the court
is persuaded that the loss of the Carter Complex could
well be a truly unique or unusual factor. See Overton
Park, 401 U.S. at 413. Thus, even if No-Build were pru-
dent, the magnitude and uniqueness of the Carter Com-
plex could justify an exception to the prudent requirement.
Defendants also considered improvements to Ponce
de Leon, including updated signalization, widening to four
twelve foot lanes, and new turning lanes at intersections.
FEIS, at 238-39. Defendants do not assert that this al-
ternative is not feasible. They claim that it is not prudent,
because it will not satisfy the transportation need that the
Parkway would fulfill. See LES, 537 F.2d at 85. More
important, this alternative would impact upon § 4(f) areas:
Druid Hills Historie District and five Olmstead Parks.
Thus, it is not a prudent alternative to the Parkway, and
will be considered further under § 4(f)(2). Zd.
The Decatur Parkway alternative would begin at the
I-75/85 stub, proceed easterly toward the Complex, and
turn south through existing right-of-way to join DeKalb
Avenue. That street would be improved to a five-lane
controlled access facility with a variable width landscaped
median, twelve foot lanes, a side-walk, bike path, and a
landscape buffer. FEIS at 192.
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Defendants again have not claimed that this alterna-
tive is not feasible, but that itis imprudent. First, it will
not fulfill transportation needs in the corridor. This is
true especially if Clifton Road is the eastern terminus,
because traffic would be unable to go north toward the
Ponce de Leon area without using busy roads and neigh-
borhood streets, 7d. at 194. Additionally, §4(f) sites
would be impacted, including Moreland Historic District,
Inman Park Historie District, and Candler Park Historic
District. The alternative’s extension northeastward to
tie in to the Ponce corridor would assist in meeting trans-
portation goals, but would impact even more of Candler
Park Historic District, as well as Sycamore Street Historic
District. Jd. at 196-97. The alternative impacts § 4(f)
property, and is not prudent. It will be analyzed under
§ 4(f) (2).
Two alternatives concerning Moreland Avenue were
presented: a parkway termination at Moreland, and one
terminating there with a related north-south roadway on
existing rights-of-way, and a proposed future extension
to Lullwater Road (the Marbut Plan). FEIS at 199. The
Marbut Plan, with its proposed extension to Lullwater,
would impact on §4(f) property in the Candler Park and
Druid Hills Historie Districts. The north-south leg would
impact on § 4(f) lands in the North Highland/North Ave-
ne, Moreland, and Inman Park Historic Districts. The
plan thus would not be a prudent alternative, and will be
discussed under § 4(f)(2).
The other plan would terminate the Parkway at More-
land, with no plans for future extension. Because all Park-
way traffic would exit at Moreland, an already busy street,
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the intersections of Moreland at North Avenue and at
once de Leon would be upgraded. Additionally Ponce de
Leon and Moreland would be widened. Defendants be-
lieve that this plan will not provide fully for transportation
needs. The plan also would impact § 4(f) property in the
Olmstead Parks, the Druid Hills Historic District, and
the North Highland/North Avenue Districts. Thus, it
is not a prudent alternative and will be considered under
§ 4(f) (2).
The FEIS also mentioned an alternative to the north
of Candler Park Historie District, FEIS at 232, 237, which
was rejected because it would impact on Druid Hills His-
toric District and require residential displacements there-
in. An alternative south of Candler Park was studied,
id. at 238, but also was not accepted. This alternative
would have impacted on the Candler Park Historic Dis-
trict.
An alternative that the Parkway extend from down-
town to the Complex was rejected because it would not
satisfy transportation requirements. FEIS at 48-49. The
FEIS also discussed a two lane Parkway. This alterna-
tive would not have addressed the need completely, and
additionally would have impacted § 4(f) properties.
Another alternative would make Edgewood and De-
Kalb Avenues into one way pairs. The FEIS noted that
this would be infeasible, and still would impact Inman
Park Historie District. The one-way pair of Boulevard
and Parkway Drive would not be feasible, and failed to
meet transportation goals.
In sum, the evidence indicates the defendants consid-
ered numerous alternatives, and reasonably could have con-
cluded that no feasible and prudent alternatives existed.
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2. §4(f)(2) ANALYSIS: §4(f) ALTERNATIVES
Because some of the alternatives would impact on
§ 4(f) land, they must be analyzed under the second eri-
terion of ¢4(f): whether they minimize harm to § 4(f)
property. These alternatives are improvements on Ponce
de Leon, Decatur Parkway, Moreland Avenue termina-
tion, roads north of Candler Park Historie District, and
south of Candler Park, and a two-lane parkway.
The defendants’ conclusion that the last three alter-
natives would not minimize harm and were not prudent
was reasonable. The roads north and south of Candler
Park would have impacted Druid Hills Historie District
and Candler Park Historie District to a much greater de-
gree than would the Parkway. FEIS, at 237-38. Thus, de-
fendants’ decision that the Parkway would do less harm
to those areas and to §4(f) property in general was rea-
sonable. Additionally, rejection of the two lane parkway
alternative was reasonable. That roadway would not have
met transportation needs, but would have caused equal
§4(f) harm. Thus the defendants could choose between
the two versions of the Parkway, LES, 537 F.2d at 85, and
their choice was reasonable.
Defendants stated that Ponce de Leon Avenue im-
provements would require additional right-of-way for the
length of five of the Olmstead Parks and along the north-
ern side of Ponce de Leon. Existing pavements would have
been widened. Turning lanes at Oakdale, Springdale, Lull-
water, and Clifton Roads would have required additional
right-of-way to accommodate at least sixty feet of road-
way. Approximately seven to eight acres would be used
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from the Druid Hills Historie District, and five of the
Olmstead Parks would be impacted. FEIS, at 238-39.
Defendants concluded that the improvements alter-
native would impact more severely on §4(f) property.
Fven though Goldsboro and Candler Parks would be avoid-
ed, five Olmstead Parks, rather than two, would be im-
pacted. Jd. Additional land from the northern side of
Ponce de Leon, in the Druid Hills Historie District,
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