# Petition for Writ of Certiorari — Druid Hills Civic Ass'n v. Federal Highway Administration > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1760%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 488 U.S. 819 ## Text To Supreme Court, US. : ~ re. t. 7 od af by I L ht A” es © i! Pe 8 I 4 MAY i9 13988 Sn JOSEPH F. SPANOL, JR. CLERX 4 = - st | 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 & es 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 Wield Cleat atte. * 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 ee ee Ee Sa ee ee OO ee eee . ret laine OR OE. te Oe ee tm, 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. oo ee ails Sebitintic th amthide seis i ; 7: 4 } 3 b 4 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1760%3A1. Public record. Not legal advice.