                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"Greene Guilford Env v. Wykle" (2004). 2004 Decisions. Paper 876.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/876


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                                                                    NOT PRECEDENTIAL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.




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