                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


WEST LANGLEY CIVIC ASSOCIATION,        
               Plaintiff-Appellant,
                 v.                              No. 00-1875
FEDERAL HIGHWAY ADMINISTRATION,
              Defendant-Appellee.
                                       
            Appeal from the United States District Court
         for the Eastern District of Virginia, at Alexandria.
               Claude M. Hilton, Chief District Judge.
                          (CA-99-1651-A)

                      Argued: January 23, 2001

                      Decided: March 30, 2001

Before WIDENER and TRAXLER, Circuit Judges, and Malcolm J.
HOWARD, United States District Judge for the Eastern District of
            North Carolina, sitting by designation.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Eugene E. Threadgill, McLean, Virginia, for Appellant.
Robert Joseph Black, FEDERAL HIGHWAY ADMINISTRATION,
Washington, D.C., for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Jeri Kaylene Somers, Assistant United States Attor-
ney, Alexandria, Virginia, for Appellee.
2             WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   This case involves a battle for a noise barrier to protect nearby resi-
dents from the constant noise generated by the huge volume of traffic
carried on Interstate 495, the "Capital Beltway" encircling Washing-
ton, D.C. Appellant West Langley Civic Association (the "Associa-
tion") is an association of homeowners who live in the West Langley
neighborhood of McLean, Virginia, an area that abuts the Beltway.
The Association appeals from the grant of summary judgment in
favor of the Federal Highway Administration ("FHWA"). We affirm.

                                    I.

   Before approval of a "federal-aid" highway project,1 the environ-
mental effects of the project (including noise pollution) must be fully
considered, see 23 U.S.C.A. § 109(h) (West 1990), and adequate mea-
sures must be taken to ensure compliance with federal noise level
standards, see 23 U.S.C.A. § 109(i) (West 1990). When the Beltway
was widened to eight lanes in the 1970s, FHWA regulations generally
required the use of noise abatement measures, such as concrete walls
serving as noise barriers, unless an exception was granted. See 23
C.F.R. §§ 772.13 & 772.15 (1977); 23 C.F.R. §§ 772.3 & 772.4
(1973). During the widening of the Beltway, the agency now known
as the Virginia Department of Transportation ("VDOT") sought and
received an exception that excused it from building a noise barrier
between the Beltway and West Langley.

  West Langley residents complained about the noise from the
expanded Beltway and requested that VDOT construct noise barriers.
    1
   Broadly speaking, a "federal-aid highway" is a highway eligible for
federal assistance under the Federal-Aid Highway Act. See 23 U.S.C.A.
§ 101(a)(5) (West Supp. 2000).
             WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.                   3
VDOT refused, based on its policy not to "retrofit" existing highways
with noise barriers. West Langley residents then began a twenty-year
campaign for the barriers, repeatedly seeking the aid of state and fed-
eral legislators, commissioning a survey in 1988 that showed a sub-
stantial increase in the noise level from the Beltway, and even
requesting in 1991 that FHWA withhold highway funding from
VDOT until it built a noise barrier. (The FHWA declined, noting that
could not force a state agency to undertake any specific course of
action.) In 1995, the Association sued the FHWA in connection with
its granting of the exception authorizing VDOT to widen the Beltway
without constructing a noise barrier in the West Langley area. That
action was dismissed on statute of limitation grounds.

   Things began looking up for the Association in 1999, when the
Virginia General Assembly passed a bill requiring VDOT to construct
a noise barrier at West Langley with federal funds. The Association’s
happiness, however, was short-lived. By the time the Virginia bill was
passed, there had been a sea change in the availability of federal funds
for projects like the West Langley noise barrier.

   Noise abatement projects fall into two categories. Type I projects
are those associated with construction of a new federal or federal-aid
highway or an alteration of an existing highway, such as the addition
of new lanes. See 23 C.F.R. § 772.5(h) (2000). Type II projects are
those for noise abatement on existing highways. See 23 C.F.R.
§ 772.5(i) (2000). While noise abatement is generally required with
Type I projects, Type II projects are not mandatory. See 23 C.F.R.
§ 772.7 (2000). Because no noise barrier was built at West Langley
when the Beltway was widened, the barrier sought by the Association
is a Type II project.

   Prior to 1995, federal-aid funding was available for Type II noise
abatement projects proposed by state agencies, see, e.g., 23 C.F.R.
§ 772.9(c) (1977 ed.), and by 1992 seventeen states had constructed
Type II noise abatement projects, see 61 Fed. Reg. 45,319, 45,320
(Aug. 29, 1996). In 1995, however, Congress passed the National
Highway System Designation Act, which, among other things,
severely limited the availability of federal aid for Type II projects:

      (1) GENERAL RULE.—No funds made available out of
    the Highway Trust Fund may be used to construct Type II
4                WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.
        noise barriers (as defined by section 772.5(i) of title 23,
        Code of Federal Regulations) pursuant to subsections (h)
        and (i) of section 109 of title 23, United States Code, if such
        barriers were not part of a project approved by the Secretary
        before the date of the enactment of this Act.

           (2) EXCEPTIONS.—Paragraph (1) shall not apply to
        construction of Type II noise barriers along lands that were
        developed or were under substantial construction before
        approval of the acquisition of the rights-of-ways for, or con-
        struction of, the existing highway.

See National Highway System Designation Act of 1995 § 339(b),
Pub. L. No. 104-59, 109 Stat. 568, 605 (1995).2 In response to the
Act, the FHWA amended its regulations to provide that:

           For Type II projects, noise abatement measures will only
        be approved for projects that were approved before Novem-
        ber 28, 1995, or are proposed along lands where land devel-
        opment or substantial construction predated the existence of
        any highway. The granting of a building permit, filing of a
        plat plan, or a similar action must have occurred prior to
        right-of-way acquisition or construction approval for the
        original highway. Noise abatement measures will not be
        approved at locations where such measures were previously
        determined not to be reasonable and feasible for a Type I
        project.

23 C.F.R. § 772.13(b) (2000) (emphasis added).

   This regulation was in effect when federal funds were sought for
the state-approved West Langley noise barrier. The FHWA refused
the funding request. According to the FHWA, VDOT was granted an
exception to the Type I noise barrier requirement at the time of the
Beltway expansion in the 1970s because the barrier was determined
not to be reasonable. The FHWA therefore concluded that regulation
    2
   According to the Association, the change was a reaction to a televi-
sion expos characterizing as wasteful the use of taxpayers’ money to
build noise barriers.
              WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.                     5
772.13(b) prohibited the use of federal funds for the construction of
the West Langley noise barrier. After the FHWA denied the request
for federal-aid funds, the Association filed this action in district court.

   The Association challenged the first portion of the regulation,
which allows funding for Type II projects only if a development was
under construction, a building permit obtained, a plat plan filed, or
other similar action had occurred "prior to right-of-way acquisition or
construction approval for the original highway." 23 C.F.R.
§ 772.13(b). According to the Association, the FHWA exceeded its
statutory authority when promulgating this portion of the regulation
because the regulation narrowed the projects for which federal funds
could be used by limiting availability to areas where development was
begun prior to the right-of-way acquisition or construction of the
"original highway," while the National Highway System Designation
Act referred only to the "existing highway."

   The Association also challenged the final sentence of regulation
772.13(b), which states that funding will not be available for Type II
projects at locations where Type I noise abatement had previously
been determined to be not reasonable or feasible. According to the
Association, that portion of the regulation is impermissibly retroac-
tive, at least as applied to West Langley, because the decision to deny
funds is triggered by an event—the prior determination of the reason-
ableness and feasibility of Type I noise abatement measures—that
happened more than twenty years before the regulation was enacted.

   The district court granted summary judgment to the FHWA. The
court first concluded that the FHWA’s interpretation of the undefined
statutory phrase "existing highway" to mean "original highway" was
not unreasonable and that the regulation was therefore valid. The
court also ruled that the FHWA’s decision to deny funding for the
requested noise barrier "had a reasonable basis in the record" and
therefore could not overturned. J.A. 202. The district court did not
specifically address the Association’s retroactivity argument.

                                    II.

  Although the Association questioned in its brief the FHWA’s inter-
pretation of "existing highway" as meaning "original highway," it
6             WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.
abandoned this claim during oral argument. Instead, the Association
focused on its claim that the final sentence of regulation 772.13(b) is
an impermissible retroactive regulation. Questions about the validity
of a regulation are reviewed de novo, see CSX Corp. v. United States,
124 F.3d 643, 646 (4th Cir. 1997), but we give substantial deference
to an agency’s interpretation of its own regulations, unless that inter-
pretation is "plainly erroneous or inconsistent with the regulations,"
Zeneca, Inc. v. Shalala, 213 F.3d 161, 168 (4th Cir. 2000) (internal
quotation marks and alteration omitted).

   "Retroactivity is not favored in the law . . . [and] congressional
enactments and administrative rules will not be construed to have
retroactive effect unless their language requires this result." Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). We conclude
that the challenged portion of regulation 772.13 is not retroactive.

   A law or regulation operates retroactively if it "impair[s] rights a
party possessed when he acted, increase[s] a party’s liability for past
conduct, or impose[s] new duties with respect to transactions already
completed." Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).
A regulation "does not operate ‘retrospectively’ merely because it is
applied in a case arising from conduct antedating [its] enactment, or
upsets expectations based in prior law." Id. at 269 (internal citation
omitted). Nor is a regulation retroactive "because it draws upon ante-
cedent facts for its operation." Id. at 270 n.24 (internal quotation
marks omitted)); see also Reynolds v. United States, 292 U.S. 443,
449 (1934) ("A statute is not rendered retroactive merely because the
facts and requisites upon which its subsequent action depends . . . are
drawn from a time antecedent to the enactment.").

   In this case, the application of regulation 772.13 is triggered by
events occurring after its effective date—the construction and request
for funding of a Type II noise barrier. See McAndrews v. Fleet Bank
of Mass., N.A., 989 F.2d 13, 16 (1st Cir. 1993) ("The determination
of whether a statute’s application in a particular situation is prospec-
tive or retroactive depends upon whether the conduct that allegedly
triggers the statute’s application occurs before or after the law’s effec-
tive date."). While the availability of funds depends in part upon an
event that occurred years before (the determination that a Type I bar-
rier was not reasonable or feasible), this reference to antecedent
             WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.                   7
events simply does not make the regulation an impermissible retroac-
tive one. See Landgraf, 511 U.S. at 280 n.24; McAndrews, 989 F.2d
at 16 ("[A] statute does not operate retroactively simply because its
application requires some reference to antecedent facts."). Because
the regulation governs the availability of federal funds for Type II
noise abatement projects begun after the effective date of the regula-
tion, the Association’s retroactivity argument fails.

   To the extent that the Association’s brief can be read as challeng-
ing the substance of the FHWA’s conclusion that a Type I barrier at
the West Langley location had previously been determined to be
unreasonable, that argument likewise fails, because the FHWA did
not act arbitrarily or capriciously when making that determination.
See 5 U.S.C.A. § 706(2)(A) (West 1996) (stating that an agency’s
action must be upheld unless the action was "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.").

   When the Beltway was widened in the 1970s, the FHWA granted
VDOT an exception from the noise abatement requirements after
VDOT’s investigation revealed that most West Langley residents
favored the use of an earth berm with supplemental planting rather
than a noise barrier, even though the berm would be substantially less
effective in reducing the noise from the Beltway. According to
VDOT’s survey of the residents, they preferred the berm because it
would leave intact the substantial stand of trees that provided a visual
screen from the Beltway, while construction of a noise wall would
have required removal of many of the trees. VDOT therefore based
its exception request on the residents’ lack of support for the con-
struction of a noise barrier.

   The Association now contends that VDOT misrepresented the
results of the survey to the FHWA and that most of the residents in
fact wanted a noise barrier to be built. This argument, however, is
nothing more than an attempt to litigate the propriety of the FHWA’s
granting of the exception, an attempt that is barred under principles
of res judicata by the dismissal of the Association’s 1995 lawsuit
against the FHWA. See First Union Commercial Corp. v. Nelson,
Mullins, Riley & Scarborough (In re Varat Enters., Inc.), 81 F.3d
1310, 1314-15 (4th Cir. 1996) ("Under res judicata principles, a prior
judgment between the same parties can preclude subsequent litigation
8             WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.
on those matters actually and necessarily resolved in the first adjudi-
cation. . . . [Res judicata] bars litigation not only of every matter actu-
ally adjudicated in the earlier case, but also of every claim that might
have been presented." (citations omitted)); Shoup v. Bell & Howell
Co., 872 F.2d 1178, 1180-81 (4th Cir. 1989) (holding that dismissal
based on the expiration of the statute of limitations is a decision on
the merits for purposes of res judicata). Accepting as we must that the
FHWA properly granted VDOT an exception from the requirement to
build a Type I noise abatement project, we cannot say that the FHWA
made a clear error of judgment or disregarded the controlling law
when it relied on the prior exception to deny funding under regulation
772.13. See Maryland Dep’t of Human Resources v. USDA, 976 F.2d
1462, 1475 (4th Cir. 1992) ("In determining whether agency action
[violates § 706(2)(A) of the APA] . . ., we perform only the limited,
albeit important, task of reviewing agency action to determine
whether the agency conformed with controlling statutes, and whether
the agency has committed a clear error of judgment." (internal quota-
tion marks omitted)).

                                   III.

  We conclude that regulation 772.13 is not retroactive and that the
FHWA properly applied the regulation to deny funding for the West
Langley noise barrier. Accordingly, the district court’s grant of sum-
mary judgment in favor of the FHWA is hereby affirmed.

                                                             AFFIRMED
