HOWARD, Chief Judge.
The Town of Portsmouth, Rhode Island challenges a district court order dismissing its claims against federal and state transportation agencies and officers for collecting tolls on the Sakonnet River Bridge in violation of the anti-tolling provision of the Federal-Aid Highway Act (FAHA), 23 U.S.C. § 301, and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347. After the Town filed this suit in federal court, the Rhode Island legislature repealed the tolls. Consequently, the district court denied on mootness grounds the Town's requests for injunction, declaratory judgment, and monetary relief, and dismissed the Town's complaint. We agree with the district court that this legislative repeal rendered moot the Town's claims for injunctive and declaratory relief. We also conclude that the Town did not sufficiently allege or preserve a restitution claim. Even were we to excuse this insufficiency, however, the restitution claim would still fail because the Town lacks a right of action. Accordingly, we affirm the district court's dismissal of the complaint.
Since 1956, the Sakonnet River Bridge has spanned the Sakonnet River, connecting
Eventually, federal funds were approved, and a new toll-free bridge opened in September 2012. Later that year, however, the Rhode Island General Assembly enacted legislation allowing the Rhode Island Turnpike and Bridge Authority (the Authority) to impose tolls on the bridge. The following year, the state DOT issued a reevaluation of its earlier Environmental Impact Statement to account for the new tolls. The FHWA also issued a Revised Record of Decision approving the tolls.
In April 2013, the Town filed a two-count complaint against the state and federal agencies (the state DOT, the Authority, and the FHWA) in federal district court, seeking injunctive and declaratory relief, attorney fees, and unspecified general relief. One count alleged that the tolls violated the anti-tolling provision of the Federal-Aid Highway Act, 23 U.S.C. § 301, which generally prohibits tolls on federally funded bridges. The other count claimed that the defendants had failed to comply with NEPA's procedures in evaluating the impact of the tolls.
In June 2013, the district court heard and denied the Town's motion for a preliminary injunction. In August, the Authority began to collect tolls on the bridge. In November, the Town filed a motion for summary judgment on its anti-tolling claim. Before the court decided the motion, however, the Rhode Island General Assembly enacted a prohibition on toll collection after June 2014. In July 2014, the Town filed a motion seeking restitution of previously collected tolls. In its motion, the Town stated that its restitution claim was contingent upon the district court granting its earlier summary judgment motion. The defendants successfully moved to dismiss all claims as having been rendered moot by the new statute. See Town of Portsmouth v. Lewis, 62 F.Supp.3d 233 (D.R.I.2014). This timely appeal followed.
Because resolution of the mootness issue may affect our jurisdiction, we decide it before reaching the merits. Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops (ACLUM), 705 F.3d 44, 52 (1st Cir.2013). "[A]n actual controversy must exist at all stages of the review, not merely at the time the complaint is filed." Id. "[A] case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Another way of putting this is that a case is moot when the court cannot give any effectual relief to the potentially prevailing party." Id. (internal quotation marks and citations omitted). Absent factual findings that bear on the issue, we review the district court's dismissal for mootness de novo. See id.
Inescapably, the Town's claim for injunctive relief is moot because the state has repealed the tolls, so there is no ongoing conduct to enjoin. The Town tries to avoid this conclusion by arguing that what it seeks to enjoin is possible future tolling pursuant to the FHWA's approval of tolling in its 2013 Revised Record of Decision.
The Town's claim for declaratory relief fails for similar reasons. In order for a claim for declaratory relief to survive a mootness challenge, the Town must "show that there is a substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." ACLUM, 705 F.3d at 54 (internal formatting omitted). Because the state legislature has prohibited toll collection, "[t]he controversy here is at this point neither immediate nor real." Id. As with the claim for injunctive relief, we decline to issue a declaration about the legality of hypothetical tolls.
In an attempt to revive these moot claims, the Town relies on the "voluntary cessation" exception. This exception can apply when a "defendant voluntar[ily] ceases the challenged practice" in order to moot the plaintiff's case, id., and there exists "a reasonable expectation that the challenged conduct will be repeated following dismissal of the case," id. at 56. The exception's purpose is to deter a "manipulative litigant [from] immunizing itself from suit indefinitely, altering its behavior long enough to secure a dismissal and then reinstating it immediately after." Id. at 54-55. In light of this purpose, the exception ordinarily does not apply where the voluntary cessation occurred for reasons unrelated to the litigation. See id. at 55.
Here, there is no basis upon which to conclude that the state legislature repealed the tolls in order to make the present litigation moot, so the exception does not apply.
Strictly speaking, the Town's restitution claim may not be moot, unlike its claims for injunctive or declaratory relief. It is settled law that a claim for monetary relief, including restitution, may survive events that moot injunctive or declaratory relief. See N.L.R.B. v. Me. Caterers, Inc., 732 F.2d 689, 691 (1st Cir.1984) (holding that claim for cost reimbursement and making employees whole is not moot, despite the defendant having ceased the challenged practice); see also Demelo v. U.S. Bank Nat'l Ass'n, 727 F.3d 117, 124-25 (1st Cir.2013) (claim for money damages survives despite mootness of other relief). Here, notwithstanding the statute repealing toll collection, the Town seemingly retains a cognizable interest in a refund of the tolls that it alleges were illegally collected. The district court has the power to order a refund, and the restitution claim would therefore appear to remain viable for purposes of Article III jurisdiction.
The defendants suggest that the restitution claim is nevertheless moot because, to the extent that the claim was adequately alleged, the Town explicitly acknowledged in the district court that restitution was dependent on the viability of the injunctive and declaratory claims. As we have stated, however, for jurisdictional purposes, the Town would seem to have a sufficiently continuing interest in the restitution of the illegally collected tolls. A defect in pleading does not necessarily affect our power to hear the case. Federal courts have jurisdiction so long as a party is arguably entitled to relief, see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), and a party's error in requesting that relief does not affect a court's jurisdiction, Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists & Aerospace Workers, 390 U.S. 557, 561, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). More generally, a
While an adequately pled claim for restitution would not be moot, here the restitution claim nevertheless fails because the Town did not sufficiently allege the claim in the district court. And, even were the Town to have done so, the claim would fail because the Town lacks a right of action.
The defendants argue that the restitution claim is barred either because the Town failed to specifically seek restitution in its complaint, or because the Town conditioned its motion for restitution on the moot claims for injunctive and declaratory relief. Regardless of the merit of the defendants' first argument, we agree with their second.
A plaintiff's failure to seek a remedy in its complaint does not necessarily forgo that remedy. Under Federal Rule of Civil Procedure 54(c), every non-default judgment "should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings." Pursuant to this Rule, a district court may grant relief not sought in the complaint. See, e.g., House of Flavors, Inc. v. TFG Mich., L.P., 643 F.3d 35, 39 (1st Cir.2011). Likewise, a district court need not dismiss a cause of action upon which relief is plausible, even if that relief was not sought in the complaint. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 65-66, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978); Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir.2002) (Posner, J.); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1255 n.7 (3d ed.2004 & Supp.2015).
That does not of course mean that there are no limits to the liberality of Rule 54(c). There are. For example, a district court need not consider remedies based on a cause of action not pled in the complaint. See Governor Wentworth Reg'l Sch. Dist. v. Hendrickson, 201 Fed.Appx. 7, 9 (1st Cir.2006) (per curiam). A court may also find that a party's failure to request relief so prejudiced the other party that granting relief would be unjust. See United States v. Marin, 651 F.2d 24, 31 (1st Cir.1981). And we need not consider a remedy first raised on appeal. See Thomas R.W. v. Mass. Dep't of Educ., 130 F.3d 477, 480 (1st Cir.1997).
Here, Rule 54(c) could apply. Although the Town did not specifically seek the remedy of restitution in its complaint, there is no evidence that this prejudiced the defendants. In addition, the Town made a general prayer for relief and moved for restitution in the district court based on the causes of action in its complaint.
That being said, the Town nevertheless has foregone any entitlement to restitution because it conditioned the restitution claim on the now moot claims for injunctive and declaratory relief. Even in its principal brief on appeal, the Town suggests that the restitution claim stands or falls with the injunctive and declaratory claims. See Town's Br. at 23. As we have explained, however, the district court correctly ruled
The Town reverses course in its reply brief, arguing for the first time that its belated request for restitution breathes life into its otherwise moribund declaratory claim. The Town asserts that a declaration (that the tolls were illegally collected) acts as a "predicate" to restitution and that therefore both claims remain alive. Whatever merit this argument may have in the abstract, see Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir.2011); Nelson v. Miller, 570 F.3d 868, 883 (7th Cir.2009), we do not ordinarily consider arguments raised for the first time in an appellant's reply brief, Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354 (1st Cir.1992). The Town has thus waived this argument, and its restitution claim is accordingly foreclosed.
In any event, even were we to excuse the Town's waiver, we would deny relief for lack of a private right of action. The Town argues that it may proceed under either NEPA or the anti-tolling provision, 23 U.S.C. § 301, but neither of these statutes provide it with a right of action.
We need not linger over the argument based on NEPA. We have expressly held that NEPA provides no private right of action at all. Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife Serv., 674 F.3d 97, 102 (1st Cir.2012). A majority of the other circuits that have decided this issue agree. See, e.g., Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 72 (D.C.Cir.2011); Sw. Williamson Cty. Cmty. Ass'n, Inc. v. Slater, 173 F.3d 1033, 1035 (6th Cir.1999). But see S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 331 (4th Cir.2008).
Turning to the anti-tolling provision, that statute does not explicitly provide for a private right of action. We think that it does not imply a right of action either.
The anti-tolling provision provides that
Similarly, the statute is worded in the language of government highway policy and practice, not the entitlements of motorists who use toll bridges. It sets forth a policy that federally funded highways must, with some exceptions, be toll-free highways. That policy has an "aggregate focus" that benefits the highway-using public at large. Id. at 288, 122 S.Ct. 2268 (internal quotation marks omitted). It does not express "concern[ ] with whether the needs of any particular person have been satisfied." Id. (internal quotation marks omitted).
Finally, the Act grants the FHWA enforcement authority through its discretion to approve federal funds. See, e.g., 23 U.S.C. §§ 105(a), 106(a), 109, 116(d); see also e.g., City of Cleveland v. Ohio, 508 F.3d 827, 842 (6th Cir.2007) (FHWA has discretion to withhold federal funds where construction contract does not comply with its standards). FHWA's ample authority to enforce the Act "plainly exhibits Congress's preference for public enforcement." Bonano, 365 F.3d at 85.
Thus the anti-tolling provision does not provide the Town with a private right of action. In so concluding, we join other circuits that have construed various provisions of the Federal-Aid Highway Act not to imply a private right of action. See Endsley v. City of Chi., 230 F.3d 276, 279 (7th Cir.2000) (23 U.S.C. § 129(a)(3)); Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 186 (4th Cir.1999) (23 U.S.C. § 128); Allandale Neighborhood Ass'n v. Austin Transp. Study Policy Advisory Comm., 840 F.2d 258, 267 (5th Cir.1988) (23 U.S.C. § 134). In fact, we are not aware of any court that has found an implied right of action in the Act. See KM Enters., Inc. v. McDonald, No. 11-CV-5098, 2012 WL 4472010, at *17 (E.D.N.Y. Sept. 25, 2012), aff'd, 518 Fed. Appx. 12 (2d Cir.2013) (collecting cases).
We address one additional loose end. To the extent that the Town seeks review in this litigation of its NEPA and anti-tolling claims through the federal Administrative Procedure Act (APA), 5 U.S.C. § 702, this course is unavailable for two reasons. First, the Town's complaint did not plead an APA claim in a separate count or as a cause of action, but only asserted jurisdiction under the APA. Even where the APA applies, however, it does not confer jurisdiction. See Califano v.
Second, even assuming that the Town properly pled an APA action, the APA only provides for review of federal agency action (and then only under some circumstances). See 5 U.S.C. § 701. It does not provide a right of action against a state agency. See Johnson v. Rodriguez, 943 F.2d 104, 109 n. 5 (1st Cir.1991). But the Town's claim for restitution lies solely against the defendant that collected the tolls: the Authority. The Authority is a state agency, so the APA does not provide a right of action against it.
For the foregoing reasons, the judgment of the district court is