Opposition Brief — Druid Hills Civic Ass'n v. Federal Highway Administration

gOSEPHt F. SPANIOL, JR.

GQ

No. 87-1891

In The

Supreme Court of the United States

October Term, 1987

fn.

Vv

DRUID HILLS CIVIC ASSOCIATION, INC., e¢ al.,

Petitioners,

Vv.

THE FEDERAL HIGHWAY ADMINISTRATION, et al.,

Respondents.

fy.

Vv

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

fy,

——

MicHakEL J. BowrErs

Attorney General

Marion O. Gorpon

First Assistant Attorney General

Rouanp F’. Matson

Senior Assistant Attorney General

PLEASE SERVE:

Rotanp F’. Matson

Senior Assistant Attorney General

132 State Judicial Building

Atlanta, Georgia 30334

(404) 656-3360

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

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QUESTIONS PRESENTED

Fe

Whether the district court abused its discretion in

finding an order remanding an action to an administrative

agency for further action is not a final order which de-

prives the court of jurisdiction thereafter.

2.

Whether the district court abused its discretion in

denying Plaintiffs’ Conditional Motion for Voluntary Dis-

missal after a four-day trial, appeal, remand, and filing of

Motion for Summary Judgment by Defendants.

3.

Whether the district court abused its discretion in

granting a Motion for Summary Judgment which was sub-

stantively unopposed.

4,

Whether the district court abused its discretion in

denying attorney’s fees to a non-prevailing party.

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. MeMurray, 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

Jeter, and the United States of America.

Amicus curiae below was Carter Presidential Library

Inc.

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED once i

I i il

of Bo oe. Sh cee cere ili

ee ee 4

Siac: OF tae CASE 1

SANA RARE RS 1

Sele a en 2

SUMMARY OF ARGUMENT 3

REASONS FOR DENYING THE WRIT ... 5

8 i A eS RS Te ED 9)

I. CERTIORARI SHOULD BE DENIED BE-

CAUSE PETITIONERS SEEK REVIEW

ONLY OF THE APPLICATION OF THE

SETTLED PROCEDURAL PRINCIPLE

THAT A REMAND ORDER IS NOT A FINAL

EES rst cect nee eee ee Pe 6

Il. CERTIORARI SHOULD BE DENIED BE-

CAUSE PETITIONERS SEEK REVIEW

ONLY OF THE APPLICATION OF THE

SETTLED PROCEDURAL PRINCIPLE

THAT A VOLUNTARY DISMISSAL IS NOT

PROPER WHEN PREJUDICE RESULTS TO

pg > ig cee 8

Ill. CERTIORARI SHOULD BE DENIED BE-

CAUSE PETITIONERS SEEK REVIEW

ONLY OF THE APPLICATION OF THE

SETTLED PROCEDURAL PRINCIPLE

THAT AN UNOPPOSED MOTION FOR SUM-

MARY JUDGMENT WILL BE GRANTED .... 11

iv

TABLE OF CONTENTS—Continued

Page

IV. CERTIORARI SHOULD BE DENIED BE-

CAUSE PETITIONERS SEEK REVIEW

ONLY OF THE APPLICATION OF THE

SETTLED PRINCIPLE THAT ATTORNEY’S

FEES ARE AWARDED ONLY TO PREVAIL-

hf ) | re anna ee 14

A. PETITIONERS ARE NOT A PREVAIL-

ING PARTY IN THIS ACTION . 14

B. PETITIONERS ARE NOT A PREVAIL-

ING PARTY AGAINST THE STATE RE-

SPONDENTS IN THIS ACTION 17

CONCLUSION ....... c 18

Piyvy ijl + @ Ga! App. 1

APPENDIX B | App. 3

v

TABLE OF AUTHORITIES

Page(s)

Cases CITED:

Bé J Music, Inc. v. McAuliffe, 719 F.2d 1536 (11th

Rey Se ec ene 15

Bagby v. Beal, 606 F.2d 411 (8rd Cir. 1979) oo. 17

Bender v. Clark, 744 F.2d 1424 (10th Cir. 1984) .......... 4,7

Brown v. Secretary of Health and Human Services,

gp eR Ay 2. GSR antes ei ereneremneernaer 16

Citizens Council of Delaware County v. Brinegar,

oa6 ee ee Ce ee eS os a 16

Davis v. USX Corp., 819 F.2d 1270 (4th Cir. 1987) ...... 11

Davis v. United States Steel Corp., 779 F.2d 209

Ce | BP aRateniiean nd en meee eet ON ene 11

Doe v. Busbee, 684 F.2d 1375 (11th Cir. 1982) 0... 15, 16

Druid Hills Cwic Association, Inc. v. Federal High-

way Administration, 650 F. Supp. 1368 (N.D.

Ch. RI oaecsicciceetinniheinritin eee ees 2, 9, 13, 15

Druid Hills Civic Association, Inc. v. Federal High-

way Administration, 772 F.2d 700 (11th Cir.

| eaten ML ae aReMC a Rete MR. tinY ere o rte seu aes 1, 3, 6, 9,18

Druid Hills Civic Association, Inc. v. Federal High-

way Administration, 833 F.2d 1545 a Cir.

I ak ir ee 2

Durham v. Florida East Coast Ry. Co., 385 F.2d

ee i a eee 10

Eluska v. Andrus, 587 ¥.2d 996 (9th Cir. 1978) oo... 7

Environmental Defense Fund, Inc. v. Watt, 722

F.2d 1081 (2nd Cir. 1983) 0. 16

Fast v. School District of City of Ladue, 728 F.2d

1030 (Sth Cir. 1964) (en bane) 17

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Fayetteville Area Chamber ~ Nag Commerce v. —

463 F.2d 402 (4th Cir. 1972) ih ce, aay ©

Gossett v. Du-Ra-Kel tia 569 F.2d 869 0 (5th Cir.

1978) . enw = Sl satel ee ae

Guerrero v. Marsh, 819 F.2d 238 (Oth Cir. 1987) - 17

Hamilton v. Firestone Tire € Rubber Co., 679 F.2d

143 (9th Cir. 1982) kandi amos ae

Hanrahan v. Hampton, 446 U.S. 754 (1980) Rro ne, 5, 15, 16

Harrisburg Coalition Against Ruining the Environ-

ment v. Volpe, 381 F. Supp. 893 (M.D. Pa. 1974) .. 8

Hensley v. Eckerhart, 461 U.S. 424 (1983) 15

Hoffman v. Alside, Inc., 596 F.2d 822 (8th Cir. 1979) . 10

Holiday Queen Land Corp. v. Baker, 489 F.2d 1031

(5th Cir. 1974) . widtieoaiden ae

Howell v. Schweiker, 699 F.2d 524 1 cattn € Cir. -. 1988) = 4,7

Institutionalized Juveniles v. Secretary of Public

Welfare, 758 F.2d 897 (3rd Cir. 1985) 17

Interstate 95 Committee v. Coleman, 423 U.S. 912

(1975) . ‘cin tadeasatinataiaen tinea iaidiacmmaiael 4,8

Iranian Students Association v. Sanyer, 639 F.2d

1160 (5th Cir. 1981) . eae ee Rae he eet Se

Kentucky v. Graham, 473 U.S. 159 (1985) . 0, 17, 18

Kitchen Fresh, Inc. v. National Labor Relations

Board, 729 F.2d 1513 (6th Cir. 1984) . ee ae

La-Tex Supply Co. v. Fruehauf Corp., 444 F.2d

1366 (5th Cir. 1971), cert. den. 404 U.S. 942

CRITE ccnsiisincnieneninmceantiensciisiamamaenaiadaaaal 10

—— v. Mr. — Inc., 528 F.2d 601 Searde Cir.

1976) . sak sithhloshicinsalaeicmananala ae ae

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Litman v. Massachusetts Mutual Life Insurance

Co., 825 F.2d 1506 (11th Cir. 1987) (en bane) 4, 9, 11

Louisiana Environmental Society v. Brinegar, 513

F. Supp. 179 (W.D. La. 1981) a

Louisiana Environmental Society v. Coleman, 537

F.2d 79 (Sth Cir. 1976) inns’

Louistana Environmental So: rites v. Dole, 707 F.2d

116 (5th Cir. 1983) . a ae ha?

Mayersky v. Celebrezze, 353 F.2d 89 (3rd Cir. 1965) _. 7

McCoy v. Schweiker, 683 F.2d 1138 (8th Cir. 1982) _. 7

McGul v. Secretary of Health and Human Ser-

vices, 712 F.2d 28 (2d Cir. 1983) 5, 16

Morningside-Lenox Park Association, Inc. v. State

Highway Department, 224 Ga. 344 (1968) «0

National Labor Relations Board v. Doral Building

Services, Inc., 680 F.2d 647 (9th Cir. 1982) sd

Oglesby v. Terminal Transport Co., Inc., 543 F.2d

1111 (5th Cir. 1976) ar awe SE , «cee 13

Pauls v. Secretary nla the Air Force, 457 F.2d 294

(Ist Cir. 1972) . = iis —

Pollgreen v. Morris, 770 F.2d 1536 (11th Cir. 1985) _.. 7,8

Puerto Rico Maritime oe Auth. v. Leith,

668 F.2d 46 (1st Cir. 1981) . Seer —

Robinson v. Kimbrough, 652 F.2d 458 (5th Cir.

1981) . ssieahdilaliaiintinaiiaitie aman ‘i a

Save Our Ecosystem v. Clark, 747 F.2d 1240 (9th

Cir. 1984) DNs Be ne. ee pacnaiioe a

Sierra Club v. Army Corps of Engineers, 776 F.2d

383 (2nd Cir. 1985) ....... pidietianiiiinibesinnniaey ‘a

Vill

TABLE OF AUTHORITIES—Continued

Page(s)

Simon v. Kroger Company, 743 F.2d 1544 (11th

(Cir. 1984). cert. den. 471 U.S. L075 (1985) 4,14

Southern Oregon Citizens Agamst Toxic Sprays,

Inc. v. Clark, 720 F.2d 1475 (9th Cir. 1983) 16

Stop H-3 Association v. Coleman, 533 F.2d 434 (9th

Cir. 1976) 4,8

Taylor v. Heckler, 778 F.2d 674 (11th Cir. 1985) 4,7,8

Taylor v. Sterrett, 640 F.2d 663 (5th Cir. 1981) 15

Tookes v. Harris, 614 F.2d 1296 (5th Cir. 1980) 7

STATUTES:

42 U.S.C. § 1988 15,17,18

42 U.S.C. § 4352 6

RuLgEs:

Federal Rules of Civil Procedure Rule 56( f) 4.13

N.D. Ga. Loeal Rule 220-5(b) (2) 4.12, 13, 14

STATEMENT OF THE CASE

Proceedings Below

Respondents Georgia Department of Transportation

and Thomas D. Moreland (‘‘State Respondents’’) feel eom-

pelled to review the proceedings below because of Peti-

tioners’ flagrant mischaracterizations of those proceedings.

In September of 1984 the Federal Highway Adminis-

tration and U.S. Department of Transportation approved

the Environmental Impact Statement and made the Section

4(f) determinations on the Presidential Parkway project

in Atlanta, Georgia. The project connects the central busi

ness district with the eastern suburbs and provides access

to the Carter Presidential Library.’ Within days Peti-

tioners filed this action seeking to enjoin construction of

the Parkway.

After a four-day trial in October of 1984, the district

court refused the injunction and found in favor of the

state and federal defendants on each issue. On appeal the

Eleventh Cireuit affirmed the district court on most of the

issues, but was ‘‘unable to review the correctness of the

district court’s findings’’ on the Section 4(f) comparisons

of two alternates because the document did not show the

facts upon which the Seeretary of Transportation relied.

Druid Hills Civte Association, Inc. v. Federal Highway Ad-

ministration, 772 F.2d 700, 717-18 (11th Cir. 1985). The

case was remanded to the ‘‘district court for proceedings

'Carter Presidential Library, Inc. has been an amicus in sup-

port of the state and federal defendants at every siage of this

litigation, stating it has and continues to support the Parkway

concept as proposed

consistent with this opinion.’’ 772 F.2d at 719. The Ele-

venth Circuit’s opinion, which included the direction that

‘‘the case must be remanded to the Secretary’’ (772 F.2d

at 718), was made the judgment of the district court on

November 15, 1985. Although the case was still pending,

Petitioners moved for an award of attorney’s fees, which

was opposed by all Respondents.

In April of 1986 the federal defendants filed a supple-

mental record and the Secretary of Transportation’s re-

vised Section 4(f) determinations with the district court.

They then filed a Motion for Summary Judgment that the

revised determination met the mandates of Section 4(f).

This motion, substantively unopposed, was granted by the

district court. Druid Hills Civic Association, Inc. v. Fed-

eral Highway Administration, 650 F. Supp. 13868 (N.D.

Ga. 1986). The ruling was affirmed by the Eleventh Cir-

euit. Druid Hills Civic Association, Inc. v. Federal High-

way Administration, 833 F.2d 1545 (11th Cir. 1987). Mo-

tions for Rehearing and Rehearing en banc were denied

and Petitioners’ Application for Writ of Certiorari fol-

lowed.

Statement of Facts

Petitioners’ Statement of Facts, while essentially cor-

rect, is given to overstatement. Petitioners imply that the

proposed Parkway cuts through every historic district in

Atlanta, but the record shows it was carefully planned to

avoid all but the southern-most fringe of one historie dis-

trict. Nor does the road destroy four parks; it in fact

touches four parks, but destroys none:

oo

Present Net Remaining

Park Name Acreage Usage Acreage

Goldsboro Park 2.9 0.6 2.3

Candler Park 58.0 2.9 55.1

Shady Side Park 4.5 0.9 3.6

Dellwood Park 6.0 0.05 5.95

The Eleventh Cireuit has never characterized the Sec-

retary of Transportation’s decisions as legally insufficient.

Rather, the Circuit Court remanded the case because the

Section 4(f) determination was not sufficiently docu-

mented for the court to reach a decision on some aspects

of it. Druid Hills Civie Association, Inc. v. Federal High-

way Administration, 772 F.2d 700, 717-18 (11th Cir. 1985).

Most important to an evaluation of the decisions in

this case is the fact that the Petitioners elected not to re-

spond to the merits of the federal Motion for Summary

Judgment. As late as thirty days before a hearing on that

motion the district court invited a substantive response

from the Petitioners, which they elected not to make. See,

App. A.

SUMMARY OF ARGUMENT

Petitioners seek review of merely the application of

settled principles to the particular facts of this action. The

Respondents’ election not to dispute the substance of the

Federal Highway Administration’s Motion for Summary

Judgement has left no substantive issue for decision.

An order remanding an action to an administrative

agency for further action is an interlocutory order.

4

Bender v. Clark, 744 F.2d 1424 (10th Cir. 1984); Howell

~v. Schweiker, 699 F.2d 524 (11th Cir. 1983). Such an or-

der does not deny the district court of jurisdiction of the

matter. Taylor v. Heckler, 778 F.2d 674 (11th Cir. 1985).

This principle has been applied to numerous environmental

cases. See, e.g., Louisiana Environmental Society v. Dole,

707 F.2d 116 (5th Cir. 1983) ; Stop H-3 Assoctatton v. Cole-

man, 533 F.2d 434 (9th Cir. 1976); Fayetteville Area

Chamber of Commerce v. Volpe, 515 F.2d 1021 (4th Cir.

1975), cert. den. sub. nom. Interstate 95 Committee v. Cole-

man, 423 U.S. 912 (1975). The district court was correct

in retaining jurisdiction of this action.

After a four-day trial, denial of their requested in-

junctions, an appeal affirming findings for the Respon-

dents on all Environmental Impact Statements and most

Section 4(f) issues but remanding on one issue, additional

development of that issue and the filing of the Federal

Highway Administration’s Motion for Summary Judg-

ment, Petitioners filed a Conditional Motion for Voluntary

Dismissal without prejudice. Based upon findings of pre-

judice against Respondents, the district court properly de-

nied the motion. Litman v. Massachusetts Mutual Life In-

surance Co., 825 F.2d 1506 (11th Cir. 1987).

After the Federal Highway Administration filed its

Motion for Summary Judgment Petitioners elected not to

respond substantively, despite a request from the district

court. They failed to comply with F.R.C.P. Rule 56(f) and

also did not file an appropriate response to the motion un-

der Local Rule 220-5(b)(2). By Petitioners’ own election

the motion was unopposed and properly granted. Stmon v.

Kroger Company, 743 F.2d 1544 (11th Cir. 1984), cert. den.

471 U.S. 1075 (1985).

ee a

The primary relief sought by the Petitioners from the

outset of this action has been to enjoin construction of the

Presidential Parkway. However, no injunction has ever

been issued by any court. Petitioners have never received

any relief on the merits of their claim; the only relief they

have ever gotten is a remand. This is insufficient to have

them considered a prevailing party and entitled to attor-

ney’s fees. Hanrahan v. Hampton, 446 U.S. 754 (1980) ;

Kitchen Fresh, Inc. v. NLRB, 729 F.2d 1513 (6th Cir.

1984); McGill v. Secretary of Health and Human Services,

712 F.2d 28 (2nd Cir. 1983), cert. den. 465 U.S. 1068

(1984). Additionally, on remand it was the Secretary, not

the State Respondents, responsible for relief. Because

Petitioners did not prevail against the State Respondents,

no attorney’s fees can be awarded against those Respon-

dents. Kentucky v. Graham, 473 U.S. 159 (1985).

co)

REASONS FOR DENYING THE WRIT

INTRODUCTION

Petitioners’ Application for Writ of Certiorari pre-

sents no substantive issue for this Court’s determination.

The issues presented address only the application of well-

settled procedural principles. There is no conflict among

the circuits over the principles themselves or over their

application to the facts of this case.

I. CERTIORARI SHOULD BE DENIED BE-

CAUSE PETITIONERS SEEK REVIEW

ONLY OF THE APPLICATION OF THE

SETTLED PROCEDURAL PRINCIPLE

THAT A REMAND ORDER IS NOT A

FINAL ORDER.

Petitioners’ contentions on the jurisdictional issue are

based upon the erroneous proposition that a remand order

is a final order. They contend that the Eleventh Circuit’s

September 16, 1985, decision remanding this case to the

Secretary of Transportation (Druid Hills Civic Assocta-

tion, Inc. v. Federal Highway Administration, 772 F.2d

700 [11th Cir. 1985]), ended the lit’ ation and required

the Federal Highway Administration to commence a ‘‘new

administrative proceeding.” Petitioners use this errone-

ous supposition to bootstrap the argument that the dis-

trict court retained no jurisdiction over the later develop-

ments in this case. The argument not only distorts the

facts but overlooks the substance of the Eleventh Circuit’s

remand order and controlling valid precedent.

In the original Complaint Petitioners prayed that the

construction of the Presidential Parkway be permanently

enjoined because of alleged erroneous environmental de-

cisions. (R1-1-21). After trial, the Eleventh Circuit af-

firmed all of the district court’s findings against Peti-

tioners on each of the Environmental Impact Statement

(42 U.S.C. § 4332) issues. 772 F.2d at 708-13. However,

after approving some of the district court’s findings in

favor of the Federal Respondents on Section 4(f) issues,

the Eleventh Circuit remanded ‘‘. .. to the Secretary

for adequate findings of impact on 4(f) properties caused

by the Decatur Parkway and the two Morcland Avenue

plans.’’ 772 F.2d at 718. The Section 4(f) issues raised

by Petitioners, and the relief sought in their Complaint,

were not fully resolved at the time of remand. Additional

work was needed on the part of the United States Secre-

tary of Transportation.

Pursuant to the Eleventh Circuit’s decision, the dis-

trict court remanded this case to the Secretary. (R4-33).

An order remanding a cause for further administrative

agency action is uniformly held to the interlocutory and

not final. See, e.g., Bender v. Clark, 744 F.2d 1424, 1426-

27 (10th Cir. 1984); Howell v. Schweiker, 699 F.2d 524,

526-27 (11th Cir. 1983); McCoy v. Schweiker, 683 F.2d

1138, 1141 n.2 (8th Cir. 1982); Tookes v. Harris, 614 F.2d

1296 (5th Cir. 1980), see 699 F.2d at 528; Eluska v. An-

drus, 587 F.2d 996, 999 (9th Cir. 1978) ; Pauls v. Secretary

of the Atr Force, 457 F.2d 294, 297-98 (1st Cir. 1972);

Mayersky v. Celebrezze, 353 F.2d 89 (3rd Cir. 1965). The

Eleventh Circuit thus concisely restated what has long

been the law when it provided:

‘‘Because this circuit considers a remand order

an interlocutory order, it follows by operation of law

that the district court retains jurisdiction of the case

until the proceedings on remand have been con-

eluded.’’ Taylor v. Heckler, 778 F.2d 674, 677 n.2

(11th Cir. 1985); See, Pollgreen v. Morris, 770 F.2d

1536, 1546 (11th Cir. 1985).

In Louisiana Environmental Society v. Coleman, 537

F.2d 79 (5th Cir. 1976), the court affirmed a number of

highway-environmental issues but remanded the Section

4(f) determination for further fact-finding by the Secre-

tary. On remand, the agency conducted additional fact-

finding and issued a new Section 4(f) determination,

which was then submitted by the government in the orig-

inal civil case with a motion for an order to show cause

why judgment should not be entered. ‘The district court

proceeded to rule on the Section 4(f) issue (Louisiana

Environmental Society v. Brinegar, 513 F. Supp. 179,

181 [W.D. La. 1981]), which ruling was appealed. Louis?-

ana Environmental Society v. Dole, 707 F.2d 116 (5th Cir.

1983) (LES IJ). The Fifth Cireuit proceeded to rule on

the Section 4(f) determination that had been rendered on

remand and affirmed the same. 707 F.2d 119-23.

The decisions in Pollgreen and Taylor, supra, are con-

sistent with LES // and with the weight of authority in

other highway-environmental cases where EIS or Sec-

tion 4(f) issues have been remanded to the Secretary. See,

e.g., Fayetteville Area Chamber of Commerce v. Volpe,

463 F.2d 402 (4th Cir. 1972), on remand, 386 F. Supp. 572

(E.D.N.C. 1974), aff’d 515 F.2d 1021 (4th Cir. 1975),

cert. denied sub nom. Interstate 95 Committee v. Coleman,

432 U.S. 912 (1975) ; Stop H-3 Association v. Coleman, 533

F.2d 434 (9th Cir. 1976); Harrisburg Coalition Against

Ruining the Environment v. Volpe, 381 F. Supp. 893 (M.D.

Pa. 1974).

II. CERTIORARI SHOULD BE DENIED BE-

CAUSE PETITIONERS SEEK REVIEW

ONLY OF THE APPLICATION OF THE

SETTLED PROCEDURAL PRINCIPLE

THAT A VOLUNTARY DISMISSAL IS

NOT PROPER WHEN PREJUDICE RE-

SULTS TO THE OPPOSING PARTY.

To begin a look at this question it is helpful to grasp

the context in which Petitioners filed their Conditional

Motion for Voluntary Dismissal. As early as May 16,

1986, all parties understood that this case was active.

(R11). On June 6, 1986, the Federal Highway Admin-

istration filed its Motion for Summary Judgment. (R4-

52). Not until July 18, 1986, after responding to the

Federal Motion for Summary Judgment (R5-54), did

Petitioners file their Conditional Motion for Voluntary

Dismissal. (R5-56). Petitioners’ Motion was denied

(Druid Hills Civic Association, Inc. v. Federal Highway

Administration, 650 F.Supp. 1368, 1372 [N.D. Ga. 1986])

and the question before the Eleventh Circuit was whether

the district court abused its discretion in denying the

voluntary dismissal.

In finding no abuse of discretion the Eleventh Cir-

cuit relied upon Litman v. Massachusetts Mutual Life In-

surance Co., 825 F.2d 1506 (11th Cir. 1987) (en bane). Af-

ter remand for further proceedings, the right to those new

proceedings belongs to neither party individually, but

rather to both. 825 F.2d at 1514. To have allowed volun-

tary dismissal would have effectively rendered a nullity the

Eleventh Cireuit’s 1985 decision affirming most of the

district court’s order and remanding the case to the Sec-

retary for further proceedings on one limited issue.

Immediately the prejudice becomes clear. Petitioners

would not consider a dismissal with prejudice as to any

part of this case. (R12-47-48). There had been a four-day

trial. The Eleventh Cireuit had already affirmed the dis-

trict court’s finding against Petitioners on all of the En-

vironmental Impact Statements issues raised in this case.

Druid Hills Civil Association, Inc. v. Federal Highway

Administration, 772 F.2d 700, 708-13 (11th Cir. 1985). Ad-

ditionally, some of the United States Secretary of Trans-

10

portation’s findings on the Section 4(f) issues had been

affirmed. 772 F.2d at 715. Those issues required finality,

but Petitioners’ stated desire was to resurrect them in an-

other forum. (R12-40-43).

The only question before the district court on remand

involved a decision of the United States Secretary of

Transportation. 777 F.2d at 718. Yet, Petitioners’ de-

sire was to voluntarily dismiss and litigate in state court,

where the United States cannot involuntarily be made a

party. As the district court correctly noted: ‘‘The State

Court doesn’t have any right to adjudicate whether or not

the Secretary of Transportation has properly discharged

her duties.’’ (R12-42-R12-43). The Georgia Supreme

Court has stated that the Georgia courts will not entertain

issues regarding decisions of the United States Secretary

of Transportation which are prerequisite to the appropri-

ation of federal inoney to the State. Morningside-Lenox

Park Association, Inc. v. State Highway Department, 224

Ga. 344, 346 (1968).

The cases relied upon by Petitioners do not provide a

grounds for granting certiorari in this case. Only one

involves an attempt to dismiss after remand; in the re-

mainder the motion for voluntary dismissal came before

trial and any appeal. See, Hamilton v. Firestone Tire &

Rubber Co., 679 F.2d 143 (9th Cir. 1982); Puerto Rico

Maritime Shipping Auth. v. Leith, 668 F.2d 46 (ist Cir.

1981); Hoffmann v. Alside, Inc., 596 F.2d 822 (8th Cir.

1979) ; LaCompte v. Mr. Chip, Inc., 528 F.2d 601 (5th Cir.

1976); Holiday Queen Land Corp. v. Baker, 489 F.2d 1031

(5th Cir. 1974); Durham v. Florida East Coast Ry. Co.,

385 F.2d 366 (5th Cir. 1967); see, La-Tex Supply Co. v.

Fruehauf Corp., 444 F.2d 1366 (5th Cir. 1971), cert. den.

11

404 U.S. 942 (1971) (not abuse or discretion to deny vol-

untary dismissal during the course of trial).

The sole exception, Davis v. USX Corp., 819 F.2d 1270

(4th Cir. 1987), involved an appeal from a summary judg-

ment. To make the order final and appealable the plain-

tiff dismissed her Title VII claims, leaving only common

law tort claims based upon diversity of citizenship. Davis

v. United States Steel Corp, 779 F.2d 209, 211 (4th Cir.

1985). After reversal on appeal, with only pendent state

claims which could be tried in a state court remaining,

plaintiff sought to voluntarily dismiss. In the case at bar

the only remaining issue, the action of the United States

Secretary of Transportation, cannot be tried in a state

court.

The decision appealed from shows that the district

court did not abuse its discretion in denying Petitioners’

voluntary dismissal. Litman v. Massachusetts Mutual

Life Insurance Co., 825 F.2d 1506 (11th Cir. 1987). The

only thing Petitioners have shown in their application is

that the threat of a second lawsuit is insufficient grounds

for denying a voluntary dismissal. The district court

agreed, but found additional factors of prejudice. 650 F.

Supp. at 1372. Those factors remain unchallenged here.

III. CERTIORARI SHOULD BE DENIED BE-

CAUSE PETITIONERS SEEK REVIEW

ONLY OF THE APPLICATION OF THE

SETTLED PROCEDURAL PRINCIPAL

THAT AN UNOPPOSED MOTION FOR

SUMMARY JUDGMENT WILL BE

GRANTED.

The second part of Petitioner’s argument on this

point, that they were given no opportunity to respond to

Se

12

the merits of the Federal Highway Administration’s Mo-

tion for Summary Judgment, requires a denial of the rec-

ord. As late as thirty days before a hearing on the federal

Motion for Summary Judgment, the district court issued

an order inviting Petitioners to respond substantively to

the Motion. App. A; R5-68-2; 833 F.2d at 1550. They

elected not to do so.

Nor did the district court abuse its discretion in deny-

ing discovery. After the Federal Highway Administra-

tion filed its Motion for Summary Judgment, it was in-

cumbent upon Petitioners to respond substantively. They

elected to respond otherwise.

After the Motion was filed on June 6, 1986 (R4-52),

Petitioners first gained an extension of time to respond.

(R5-53). They subsequently filed no less than five re-

sponses (R5-54, 56, 57, 60 and 61); however, in none of

these did they respond substantively to the merits of the

Federal Motion. Rather, they chose to respond only to

procedural and jurisdictional questions. See, e.g., R5-54-

1-26. On September 16, 1986, the district court invited a

substantive response to the Motion (App. A), but no sub-

sequent response was filed. Even the proposed brief at-

tached to Petitioners’ August 20, 1986 pleading (R5-61-

6-16) provided no substantive response to the Federal

Motion.

After the Federal Highway Administration filed its

Statement of Material Facts with the Motion for Summary

Judgment, Petitioners did file a response thereto. (R5-54).

That response was either to admit the facts or feign ignor-

anee. (R5-54-27-30). This is an unacceptable response to

a Motion for Summary Judgment. N.D. Ga. Local Rule

220-5(b) (2).

13

Local Rule 220-5(b)(2) states:

‘The response that a party has insufficient knowledge

to admit or deny is not an acceptable response unless

the party has complied with the provisions of F.R.

Civ.P. 56(f).’’

Federal Rules of Civil Procedure, Rule 56(f) pro-

vides:

‘*Should it appear from the affidavits of a party op-

posing the motion that he cannot for reasons stated

present by affidavit facts essential to justify his op-

position, the court may .. . [inter alia] permit...

depositions to be taken or discovery to be had... .’’

(Emphasis and matter in brackets added).

Petitioners alleged Rule 56(f) affidavit (R5-54 Ex. B)

failed for two reasons: it was not an affidavit of a party,

but of counsel; it stated no reasons why substantive op-

position to the Motion could not be made. The affidavit

of counsel stated only that he had not done discovery be-

cause he did not believe any matter was properly before

the court and that before any decision was made on the

merits“. . . discovery would be necessary.” R5-54-Ex.B,

{ 5.

The question here is not the alleged ‘‘arbitrary

power’’ of the district court, or the Eleventh Circuit’s

improper application of the correct standard of review,

but the Petitioners’ failure to respond to the Motion for

Summary Judgment. Because Petitioners made no at-

tempt to substantively reply to the Motion, that Motion

was in fact unopposed. Gossett v. Du-Ra-Kel Corp., 569

F.2d 869 (5th Cir. 1978); Oglesby v. Terminal Transport

Co., Inc., 543 F.2 1111 (5th Cir. 1976); See, Druid Hills

Civic Association, Inc. v. Federal Highway Admwmistration,

14

650 F. Supp. 1368, 1373 n. 1 (N.D. Ga. 1986). Failure to

comply with Local Rule 220, formerly Local Rule 90, is

proper grounds for granting a summary judgment as

unopposed. Simon v. Aroger Company, 743 F.2d 1544

(llth Cir. 1984), cert. den. 471 U.S. 1075 (1985). Having

made an election not to address the merits of the Motion,

Petitioners now complain that they were given no oppor-

tunity to respond on the merits. The record itself belies

their position and substantiates that the district court did

not abuse its discretion in refusing to allow discovery.

IV. CERTIORARI SHOULD BE DENIED BE-

CAUSE PETITIONERS SEEK REVIEW

ONLY OF THE APPLICATION OF THE

SETTLED PRINCIPLE THAT ATTOR-

NEY’S FEES ARE AWARDED ONLY TO

PREVAILING PARTIES.

A. PETITIONERS ARE NOT A PRE.-

VAILING PARTY IN THIS ACTION.

It has been clear from the outset of this litigation that

Petitioners’ only goal was an injunction to stop construc-

tion of the Presidential Parkway. Contrary to their con-

tention that their entire prayer for relief was a request to

set aside approval of the project, the primary prayer was

for an order to

“ .. temporarily restrain, and preliminarily and per-

mantly enjoin Defendants from taking any actions

toward the construction of the [Presidential Park-

way].’’ R1-1-21.

Everything else was subordinated to that goal. But no

court has ever issuec: an injunction in this case. Contrary

to Petitioners’ assertion, work on the Presidential Park-

way has never stopped because of this case.

?

ee

15

Attorney’s fees may be recovered only by a prevail-

ing party. 42 U.S.C. § 1988; Hensley v. Eckerhart, 461

U.S. 424, 433 (1983). The term ‘‘prevailing party’’ is a

flexible one that is dependent on the relief sought and

actually obtained in a particular case. B & J Music, Inc.

v. McAuliffe, 719 F.2d 1536, 1538 (11th Cir. 1983). While

the party need not be successful in each and every claim

asserted, it must achieve significant relief to which it was

entitled. Doe v. Busbee, 684 F.2d 1375, 1381 (11th Cir.

1982).

The mere fact that a party gets what it is after does

not make it a prevailing party under 42 U.S.C. § 1988,

unless it prevails on a significant legal issue to achieve

the primary relief sought. Bd J Music, Inc. v. McAuliffe,

719 F.2d 1536, 1539 (11th Cir. 1983); Robinson v. Kim-

brough, 652 F.2d 458, 478 (5th Cir. 1981) ; Iranian Students

Association v. Sawyer, 639 F.2d 1160, 1163 (5th Cir.

1981); ef. Taylor v. Sterrett, 640 F.2d 663, 669 (5th Cir.

1981). Nor is a party considered to be prevailing if it

obtains mere procedural victories. Congress’ intent was

to permit interim awards of attorney’s fees only when a

party has prevailed on the merits of some of its claims.

Hanrahan v. Hampton, 446 U.S. 754, 757-58 (1980); Doe

v. Busbee, 684 F.2d 1375, 1380 (11th Cir. 1982).

An examination of the relief sought and actually ob-

tained (B & J Music, Inc. v. McAuliffe, supra) in this

case shows that Petitioners were not a prevailing party for

purposes of 42 U.S.C. § 1988. The district court correctly

analyzed Petitioners’ case, and the relief sought, under the

precedent of this Court. Druid Hills Civic Association,

Inc. v. Federal Highway Administration, 650 F. Supp.

1368, 1377 (N.D. Ga. 1986).

16

Neither the district court nor the Eleventh Circuit

granted Petitioners any of the substantive relief sought,

i.e., enjoin the project and have the Seeretary’s decision

declared illegal. (R1-1-21). The remand was at most a

procedural victory and not a victory on the merits of any

of Petitioners’ claims. See, Hanrahan v. Hampton, 446

U.S. 754, 757-58 (1980); Doe v. Busbee, 684 F.2d 1375,

1380 (11th Cir. 1982); for cases dealing specifically with

the denial of attorney’s fees when a case has been only

remanded, see, e.g., Brown v. Secretary of Health and

IIuman Services, 747 F.2d 878 (3rd Cir. 1984); Kitchen

Fresh, Inc. «. National Labor Relations Board, 729 F.2d

1513 (6th Cir. 1984); McGill v. Secretary of Health and

Human Services, 712 ¥.2d 28 (2nd Cir. 1983), cert. den.

465 U.S. 1068 (1984); National Labor Relations Board v.

Doral Building Services, Inc., 680 F.2d 647 (9th Cir.

1982}.

It is the failure of Petitioners to achieve any sub-

stantive relief whatsoever during four years of litigation

which distinguishes this case from every case cited by

them on the attorney’s fees issue. In most of the cited cases

relief was obtained in the form of an injunction. Sierra

Club v. Army Corps of Engineers, 776 F.2d 383, 387 (2nd

Cir. 1985) (court also found ‘‘ willful derogation of law’’) ;

Save Our Ecosystems v. Clark, 747 F.2d 1240, 1242 (9th

Cir. 1984); Citizens Council of Delaware County v. Brin-

egar, 741 F.2d 584, 588 (3rd Cir. 1984); Environmental

Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1084 (2nd Cir.

1983) (settled under threat of injunction); Southern Ore-

gon Citizens Against Toxie Sprays, Inc. v. Clark, 720 F.2d

1475, 1477 (9th Cir. 1983). Even the case relied upon

most heavily by Petitioners is one in which the plaintiffs

(eine.

17

were granted a writ of mandamus. Guerrero v. Marsh,

819 F.2d 238, 242 (9th Cir. 1987).

Even the cases cited by Petitioners for the proposi-

tion that a procedural victory entitles a party to attorney’s

fees do not stand for that proposition. They stand for the

proposition that securing minor substantive relief may be

sufficient to have a party considered ‘‘prevailing.’’ Jn-

stitutionalized Juveniles v. Secrelary of Public Welfare,

758 I'.2d 897 (38rd Cir. 1985) (relief sought through liti-

gation precipitated relief through legislation and regula-

tion); Fast v. School District of City of Ladue, 728 F.2d

1030, 1032 (8th Cir. 1984) (en bane) (ordered procedures

to secure plaintiff’s constitutional rights in a termination

proceeding); Bagby v. Beal, 606 F.2d 411, 413 (3rd Cir.

1979) (ordered specific termination hearing procedures to

secure plaintiffs’ constitutional rights).

B. PETITIONERS ARE NOT A PRE-

VAILING PARTY AGAINST THE

STATE RESPONDENTS IN THIS

ACTION.

Even if it were determined that Petitioners were a

‘*prevailing party’’ generally in this case, which the State

Respondents submit they are not, the inquiry does not end.

Regardless of whether Petitioners are a prevailing party

as against the Federal Respondents, the orders below are

correct to the extent they determine Petitioners are not a

prevailing party as against the State Respondents. Sec-

tion 1988 (42 U.S.C. § 1988) does not create attorney’s fees

liability where liability on the merits is non-existent. Aen-

tucky v. Graham, 473 U.S. 159 (1985).

Section 1988 does not specifically define the parties

who must bear the attorney’s fees. However, it logically

18

follows that the party legally responsible for relief on the

merits is the party who should bear attorney fee liability.

473 U.S. at 164. In the present case no injunction has been

issued against the State Respondents; no decision of the

State Respondents has been found to be erroneous. All the

Environmental Impact Statement issues were resolved in

‘the State Respondents’ favor. Drutd Hills Civic Associa-

tion, Inc. v. Federal Highway Administration, 772 F.2d

700, 708-13 (11th Cir. 1985).

The case was remanded solely on the issue of a deci-

sion of Federal Respondent, U.S. Secretary of Transporta-

tion.

‘*|T}he case must be remanded to the Secretary.

| W]e are mindful of the tremendous task confronting

the Secretary in resolving these difficult issnes.’’ 772

F.2d at 718.

On remand it was the Secretary who was responsible for

relief. Petitioners did not prevail against the State Re-

spondents and 42 U.S.C. § 1988 does not authorize a fee

award against them. Aentucky v. Graham, 473 U.S. 159,

165 (1985).

CONCLUSION

Because Petitioners did not substantively oppose the

Federal Highway Administration’s Motion for Summary

Judgment, Petitioners seek review only of the application

of settled procedural principles without conflict among the

circuits. All were properly applied in this case. For the

foregoing reasons it is respectfully submitted that Peti-

tioners’ Application for Writ of Certiorari should be

DIENTED.,

19

Respectfully submitted,

MicHakEL J. BowErs

Attorney General

Marton O. Gorpon

First Assistant Attorney General

Rouanp F. Matson

Senior Assistant Attorney General

PLEASE ADDRESS ALL

COMMUNICATIONS TO:

Ro tanp F. Matson

Senior Assistant Attorney General

132 State Judicial Building

Atlanta, Georgia 30334

(404) 656-3360

App. 1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

FEDERAL HIGHWAY

ADMINISTRATION, et al.

DRUID HILLS CIVIC )

ASOCIATION, INC., et al. )

)

vs. ) CIVIL NO.

) C84-1931A

)

)

ORDER

Presently before the court are plaintiffs’ motion for

attorneys’ fees, federal defendants’ motion for summary

judgment, plaintiffs’ conditional motion for voluntary

dismissal as to the subject matter of federal defendants’

motion for summary judgment, plaintiffs’ motion to allow

filing of amendment to and clarification of plaintiffs’ brief

in support of plaintiffs’ application for fees, costs, and ex-

penses, and plaintiffs’ motion to allow plaintiffs to file re-

ply briefs in opposition to federal defendants’ motion for

summary judgment.

After careful review of the record, the court has de-

termined that a hearing on the federal defendants’ mo-

tion for summary judgment would be beneficial. The

parties are directed to appear on October 17, 1986, at 9:30

a.m. at the United States Courthouse, 75 Spring Street,

S.W., Courtroom 1906, Atlanta, Georgia. This hearing

date is contingent on the court’s completing a criminal

trial in the Gainesville Division set to begin on Septem-

ber 29, 1986. Attorneys for all parties should call Jerry

Evans, Courtroom Deputy Clerk, one week prior to the

App. 2

hearing to confirm this date. At the hearing all parties

should be prepared to discuss the merits of federal de-

fendants’ motion for summary judgment and all issues

related to that motion, including plaintiffs’ conditional

request for interlocutory appeal and additional discovery

time.

The court will allow plaintiffs’ motion to file a reply

brief in opposition to federal defendants’ motion for sum-

mary judgment. L.R. 220-1(b)(2) (N.D. Ga.). The court

grants plaintiffs until September 22, 1986 to file their

reply brief.

The court will not decide the other motions until after

the hearing on federal defendants’ motion for summary

judgment. Although plaintif’:’ motion for attorneys’ fees

has been pending before the court since May 20, 1986, the

court is of the opinion that the motion may be affected

in some manner by future developments in the defen-

dants’ motion for summary judgment.

Accordingly, plaintiffs’ motion to file reply briefs in

opposition to federal defendants’ motion for summary

judgment is granted, and a hearing is set for October 17,

1986, at 9:30 a.m. on federal defendants’ motion for sum-

mary judgment.

IT IS SO ORDERED this 16th day of September,

1986.

/s/ William C. O’Kelley

WILLIAM C. O’KELLEY

United States District Judge

App, 3

APPENDIX B

COURT RULES INVOLVED

Federal Rule of Civil Procedure 56(f)

When Affidavits are Unavailable. Should it ap-

pear from the affidavits of a party opposing the

motion that he cannot for reasons stated present by

affidavit facts essential to justify his opposition, the

court may refuse the application for judgment or may

order a continuance to permit affidavits to be ob-

tained or depositions to be taken or discovery to be

had or may make such other order as is just.

Northern District of Georgia Local Rule 220-5(b) (2)

The respondent to a motion for summary judg-

ment shall attach to his response a separate and con-

cise statement of material facts, numbered separately,

to which he contends there exists a genuine issue to be

tried. Response should be made to each of the mov-

ant’s numbered material facts. All material facts

contained in the moving party’s statement which are

not specifically controverted by the respondent in his

statement shall be deemed to have been admitted. The

response that a party has insufficient knowledge to

admit or deny is not an acceptable response unless

the party has complied with the provisions of F.R.

Civ.P. 56(f).