Filed: Apr. 05, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-5-2004 Greene Guilford Env v. Wykle Precedential or Non-Precedential: Non-Precedential Docket No. 03-2525 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Greene Guilford Env v. Wykle" (2004). 2004 Decisions. Paper 876. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/876 This decision is brought to you for free and open access by the
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-5-2004 Greene Guilford Env v. Wykle Precedential or Non-Precedential: Non-Precedential Docket No. 03-2525 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Greene Guilford Env v. Wykle" (2004). 2004 Decisions. Paper 876. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/876 This decision is brought to you for free and open access by the O..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-5-2004
Greene Guilford Env v. Wykle
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2525
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Greene Guilford Env v. Wykle" (2004). 2004 Decisions. Paper 876.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/876
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-2525
___________
GREENE/GUILFORD ENVIRONMENTAL ASSOCIATION, a non-profit corporation
incorporated under the laws of the Commonwealth of Pennsylvania; CITIZENS FOR PLANNED
COMMUNITY GROWTH, an unincorporated association organized under the laws of the
Commonwealth of Pennsylvania; PAUL B. AMBROSE; JOHN G. ENDERS; CHARLES F.
RAHAUSER; BETSY RAHAUSER; DOUGLAS A. WARNOCK; U.X. VAGNERINI;
THOMAS W. BUNDY; STEPHEN P. BUCHER; ROBERT J. ROBERTSON; JAMES A.
STRITE, JR. and DAVID A. GUTHRIE,
Appellants
v.
KEN WYKLE, Administrator, Federal Highway Administration; ROBERT GATZ, Federal
Highway Administration
BRADLEY L. MALLORY, Secretary for the Department of Transportation, Commonwealth of
Pennsylvania,
Intervenor in District Court
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 1:CV-01-0910)
District Judge: Honorable Christopher C. Conner
___________
Submitted Under Third Circuit LAR 34.1(a)
March 12, 2004
BEFORE: SLOVITER, NYGAARD, Circuit Judges.
and SHADUR,* District Judge.
(Filed )
___________
OPINION OF THE COURT
___________
SHADUR, District Judge.
Greene/Guilford Environmental Association, Citizens for Planned
Community Growth and eleven individual plaintiffs (collectively “Greene/Guilford,”
treated as a singular noun) filed a complaint in the Middle District of Pennsylvania to
seek review of a decision by the Federal Highway Administration (“Administration”) that
had approved the construction of a highway interchange on Interstate 81 near
Chambersburg, Pennsylvania. Greene/Guilford urged the District Court to set aside the
Administration's decision as arbitrary and capricious or as an abuse of discretion because,
according to Greene/Guilford, (1) the approval process did not comport with the
requirements set forth in the National Environmental Policy Act (“NEPA,” 42 U.S.C.
* Honorable Milton I. Shadur, Senior District Judge for the United States District
Court for the Northern District of Illinois, sitting by designation.
2
§4321) and the National Historic Preservation Act, 16 U.S.C. §470f,1 and (2) the
construction project failed to meet the specific goals of the congressional appropriation,
Pub. L. No. 100–17 §149(a)(74), 101 Stat. 132 (Apr. 2, 1987).
After both sides moved for summary judgment, the District Court granted
judgment in the Administration's favor. Greene/Guilford has timely appealed, claiming
that the summary judgment was wrongly decided and that the District Court made several
errors on discovery motions. We have jurisdiction under 28 U.S.C. §1291, and we affirm
the decision of the District Court for the reasons set forth in this opinion.
Because we write this opinion primarily for the parties, who are already
familiar with the case, we need not spend time covering the well-worn factual
background. And because we find that District Judge Conner's extended memorandum
opinion evaluates NEPA's procedural requirements thoroughly and properly, and then
correctly concludes that the Administration's decision approving the construction project
was not arbitrary, capricious or an abuse of discretion, we adopt that opinion in full.
After evaluating the administrative record ourselves, we agree that the administrative
record adequately demonstrates that the Administration considered all of the relevant
factors before making its decision, and we find Judge Conner's reasoning persuasive on
each of Greene/Guilford's arguments on appeal as to the summary judgment ruling.
1
Because Greene/Guilford does not raise any issues on appeal predicated on the
National Historic Preservation Act, we make no further reference to that statute.
3
That leaves Greene/Guilford's challenges relating to discovery, which we
review for abuse of discretion (Williams v. Morton, 343 F.3d 212, 222 (3d Cir. 2003)).
To succeed on appeal Greene/Guilford must demonstrate that the District Court's rulings
were “arbitrary, fanciful or clearly unreasonable” (cf. Ansell v. Green Acres Contracting
Co.,
347 F.3d 515, 519 (3d Cir. 2003)). Greene/Guilford fails to show that either of the
two discovery decisions it challenges--(1) the District Court's decision to deny additional
discovery from the Pennsylvania Department of Transportation (“PennDOT”) 2 and (2) the
decision to consider affidavits from the Administration--amounts to an abuse of
discretion.
As for the denial of additional discovery, judicial review of an
administrative decision is generally limited to the administrative record “except when
there has been a 'strong showing of bad faith or improper behavior' or when the record is
so bare that it prevents effective judicial review” (Commercial Drapery Contractors, Inc.
v. United States, 133 F.3d 1, 7 (D.C. Cir. 1998), quoting Citizens To Preserve Overton
2
Although PennDOT was not named as a defendant, the District Court granted its
motion to intervene on November 20, 2001. Neither party argues (and we need not
decide) whether PennDOT's motion to intervene was proper, for we have jurisdiction to
evaluate Greene/Guilford's claims against the Administration in any event. But we
observe that there is some disagreement between circuits as to whether intervenors must
demonstrate standing to intervene under Fed. R. Civ. P. 24 (contrast, e.g., City of
Cleveland v. Nuclear Regulatory Comm'n, 17 F.3d 1515, 1517 (D.C. Cir. 1994) with
Associated Builders & Contractors v. Perry,
16 F.3d 688, 690 (6th Cir. 1994)). On that
score see Juliet Johnson Karastelev, Note, On the Outside Seeking In: M ust Intervenors
Demonstrate Standing To Join a Lawsuit?, 52 Duke L.J. 455 (2002).
4
Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)). Greene/Guilford first argues that the
evidence in the record reflects bad faith and improper behavior, so that it should have
been permitted to conduct further discovery. But our review of the record evidence that
Greene/Guilford cites to support its position has led us to conclude that the evidence
simply does not reflect a “strong showing of bad faith,” so that the District Court did not
abuse its discretion by refusing additional discovery.
Greene/Guilford also attempts to get at the same point by arguing that the
District Court could not conduct an effective review without PennDOT correspondence
and internal e-mails. But in that respect Greene/Guilford ignores that it was the
Administration--and not PennDOT--that made the ultimate decision to approve the
construction project that forms the basis for this review. And the administrative record
need include only the materials that were before the decision-making agency at the time
the decision was made (James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir.
1996)). Here Greene/Guilford has not presented any evidence to demonstrate that the e-
mails and other discovery it sought from PennDOT were considered by the
Administration when it approved the construction project.
In sum, the District Court did not abuse its discretion by denying additional
discovery. That facet of Greene/Guilford's appeal, like its appeal as to the summary
judgment ruling itself, also fails.
Finally, under the circumstances of this case, the District Court also did not
5
abuse its discretion by allowing affidavits that were not part of the administrative record
to be submitted for its review. Although Overton Park, 401 U.S. at 420 teaches that such
“post hoc rationalization” does not suffice to explain agency action and should be viewed
critically, the Supreme Court has later stated that extra-record evidence can facilitate
judicial review by providing added explanation of the reasons for decision (Camp v. Pitts,
411 U.S. 138, 142-43 (1973)(per curiam)). Accord, such cases as Lewis v. Babbitt,
998
F.2d 880, 882 (10 th Cir. 1993).
Greene/Guilford contends that the District Court relied solely on the
affidavits when concluding that the Administration did consider potential traffic changes
in permitting the new project location to go forward. But that assertion is just false. Thus
the opinion below cites to the Administration's Reevaluation of the Final Environmental
Impact Statement (App. 1525), which contained a section that discussed the potential
effect on traffic and transportation systems of moving the construction site 412 meters
(approximately 1350 feet) and concluded that there were no significant differences
between the new and the previously selected location (App. 1546). In addition, the
District Court's opinion cited to the conclusions from the Administration's supplemental
traffic studies conducted in May 1995 (App. 469) and June 1998 (App. 1449). Hence the
District Court also did not abuse its discretion by permitting the affidavits to be submitted
to explain those studies and conclusions.
We conclude, then, that Greene/Guilford (1) has failed, for the reasons
6
discussed in the opinion below, to demonstrate that the Administration acted arbitrarily or
capriciously or abused its discretion by approving the construction project at issue and
(2) has also failed to show that the District Court abused its discretion in dealing with the
discovery issues discussed here. We therefore affirm the District Court's order granting
summary judgment in favor of the Administration and against Greene/Guilford. Finally,
this affirmance moots Greene/Guilford's recently filed motion for injunctive relief
enjoining the construction of the interchange at issue pending disposition of its appeal.
7
