RB Jai Alai, LLC v. Secretary of the Florida Department of Transportation et al

Filing 126

ORDER granting 105 Plaintiffs' Motion for Summary Judgment; denying 112 State Defendants' Cross-Motion for Summary Judgment; denying 114 Federal Defendants' Cross-Motion for Summary Judgment. Signed by Judge Paul G. Byron on 6/30/2015. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
RB JAI ALAI, LLC, et al.,
Plaintiffs,
v.

Case No: 6:13-cv-1167-Orl-40GJK

SECRETARY OF THE FLORIDA
DEPARTMENT OF TRANSPORTATION, et al.,
Defendants.
ORDER
This cause comes before the Court without oral argument on the following:
1. Plaintiffs’ Motion for Summary Judgment and Consolidated Memorandum
of Law (Doc. 105), filed November 5, 2014;
2. State Defendants’ Cross-Motion for Summary Judgment and Response in
Opposition to Plaintiffs’ Motion for Summary Judgment (Doc. 112), filed
November 24, 2014;
3. Federal Defendants’ Cross-Motion for Summary Judgment (Doc. 114) and
Combined Memorandum in Support (Doc. 115), filed November 24, 2014;
4. Plaintiffs’ Brief in Opposition to Defendants’ Cross-Motions for Summary
Judgment and in Further Support of Plaintiffs’ Motion for Summary
Judgment (Doc. 117), filed December 15, 2014;
5. Federal

Defendants’

Supplemental

Brief

on

Summary

Judgment

(Doc. 123), filed May 5, 2015;
6. State Defendants’ Supplemental Brief in Opposition to Summary Judgment
for Plaintiffs (Doc. 124), filed May 5, 2015; and

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7. Plaintiffs’ Response to Supplemental Brief on Summary Judgment
(Doc. 125), filed May 12, 2015.
Upon consideration and review of the record, including all pleadings, affidavits,
declarations, exhibits, the Administrative Record, and memoranda of counsel, the Court
grants summary judgment in favor of Plaintiffs.
I.

BACKGROUND
A.

NEPA: Our National Charter for Protecting the Environment

Following nearly a century of rapid economic expansion, population growth,
industrialization, and urbanization, it had become clear by the late 1960s that American
progress had an environmental cost. See 42 U.S.C. § 4331(a); 115 Cong. Rec. 26,571
(1969) (remarks of Rep. John Dingell). A congressional investigation into the matter
yielded myriad evidence indicating a gross mismanagement of the country’s environment
and resources, most notably at the hands of the federal government. S. Rep. No. 296,
91st Cong., 1st Sess. 8 (1969); Thomas O. McGarity, The Courts, the Agencies, and
NEPA Threshold Issues, 55 Tex. L. Rev. 801, 805 (1977) (noting “a remarkable
consensus of opinion” that the federal agencies contributed substantially to the country’s
degraded environmental state). As a result, lawmakers and the general public alike called
for an urgent and sweeping policy of environmental protection.
Congress answered these calls by enacting the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §§ 4321–4370h, which has now served for forty-five years as “our
basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). With
NEPA, Congress mandated that federal agencies take a “hard look” at the environmental
consequences of their actions and to engage all practicable measures to prevent
environmental harm when engaging in agency action. Kleppe v. Sierra Club, 427 U.S.

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390, 409, 410 n.21 (1976) (citing 42 U.S.C. § 4331(b)). Furthermore, to remedy the
widespread mistrust of the federal agencies, Congress incorporated within NEPA “actionforcing” provisions which require agencies to follow specific procedures in order to
accomplish any federal project. Id. at 409 & n.18.
The cornerstone action-forcing provision within NEPA is the environmental impact
statement (“EIS”). As an agency plans a major federal action, it is required to consider
the environmental impacts of that action. 40 C.F.R. § 1500.1. Projects that are generally
known by the agency through its experience to significantly affect the quality of the human
environment necessitate the preparation of an EIS, which describes in detail both the
positive and negative environmental impacts of the action and analyzes other alternatives
that might provide the same benefits at a lower environmental cost. See id. §§ 1502.1–
1502.25. Conversely, projects that are known by the agency through its experience to
not significantly affect the human environment (either individually or cumulatively) can be
classified as categorical exclusions (“CEs”), relieving the agency of the EIS requirement.
Id. § 1508.4; see also id. § 1501.4(a). Finally, where an agency’s regulations do not
classify a major federal action as a CE or as one requiring an EIS, or where an agency is
unsure of how a particular project should proceed, the agency will prepare an
environmental assessment (“EA”) to briefly and concisely determine whether an EIS is
necessary. Id. §§ 1501.4(b), 1508.9. An EA will result in the agency either deciding to
prepare a full EIS or filing a “finding of no significant impact,” which, like a CE, dispenses
with the EIS requirement. Id. § 1508.13.
Ultimately, NEPA does not mandate that an agency reach any particular decision,
only that the agency follows NEPA’s procedures to arrive at an informed decision. Vt.
Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978).

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17-92 to cross over SR 436 without interruption (see Figure 1). (AR 0405–0408). 2 The
Flyover Project also involves adding frontage roads to allow access to local roadways,
widening SR 436 to include additional left-turn lanes, and improving sidewalks, bicycle
lanes, drainage systems, and landscaping. (Id.). The impetus for the Flyover Project lies
in the need “to provide adequate capacity to satisfy both existing and future traffic
conditions” at the intersection, which currently operates at a failing level of service. (AR
0406).
In an effort to comply with NEPA and FAHA, Defendants conducted numerous
studies of the potential impacts the Flyover Project may have on the environment,
including a Cultural Resource Assessment Survey (AR 0201–0326), an Endangered
Species Biological Assessment (AR 0327–0344), an Air Quality Report (AR 0345–0365),
and a Noise Quality Report (AR 0366–0401). All of these studies concluded that the
Flyover Project will not significantly impact the environment. Defendants also held a
public hearing which yielded no notable concerns. (AR 0426–0615). As a result, in
February 2004, Defendants approved the Flyover Project as a CE, exempting it from
further environmental scrutiny. (AR 0402–0425).
The Flyover Project was re-evaluated twice prior to the start of construction. In
2005, Defendants conducted a re-evaluation to consider the environmental impacts of
minor changes to safety and traffic flow issues. (AR 0616–0621). Defendants ultimately
found these design changes would inflict no significant impact on the environment and
affirmed the Flyover Project’s status as a CE. (AR 0616). Defendants conducted a
second re-evaluation in 2012 because of design changes to the length of the overpass
and to the width of a median. (AR 0623–0637). Defendants determined that these

2

The Administrative Record (Doc. 45) will be cited as (AR ####).
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changes would also have no significant impact on the environment and again affirmed
the Flyover Project’s status as a CE. (AR 0624). Construction for the Flyover Project
began on October 10, 2013; to date, more than 80% of construction is complete and more
than 96% of federal funds allocated to the highway project have been spent. (Doc. 1243, ¶¶ 3–5).
Plaintiffs initiated this lawsuit on August 1, 2013 (Doc. 1) and filed the operative
complaint on July 1, 2014 (Doc. 57). Plaintiffs consist of a sports and entertainment
facility located directly adjacent to the Flyover Project’s site, the facility’s owner, and the
facility’s general manager.

Defendants consist of the Florida Department of

Transportation, the Federal Highway Administration (“FHWA”), and the agencies’
respective administrators.
Plaintiffs allege that Defendants violated NEPA by failing to adequately consider
the Flyover Project’s environmental impacts. Plaintiffs additionally allege that Defendants
violated FAHA by approving federal funding for a project that did not comply with NEPA.
Plaintiffs essentially contend that Defendants’ 2012 re-evaluation failed to address new
and changed circumstances to land use patterns, traffic patterns, contaminated sites, and
impacts to wetlands. 3 Because neither NEPA nor FAHA grant a private right of action,
Plaintiffs bring their claims through the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701–706. On November 24, 2014, the parties moved for summary judgment.
During its consideration of summary judgment, the Court determined that Plaintiffs
were entitled to judgment as a matter of law on grounds they did not raise in their motion.

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In their Second Amended Verified Complaint, Plaintiffs also challenge Defendants’
initial 2004 classification of the Flyover Project as a CE on the basis that they failed to
adequately consider the project’s environmental impacts. However, on motion to
dismiss, the Court determined that any challenge to the initial classification as a CE
was barred by the statute of limitations. (Doc. 88, pp. 16–19).
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Specifically, upon review of the Administrative Record and the applicable law, the Court
concluded that the Flyover Project is not the type of project that may be categorically
excluded under NEPA and FAHA. Accordingly, and pursuant to Federal Rule of Civil
Procedure 56(f), the Court notified Defendants of its intent to enter summary judgment in
favor of Plaintiffs and invited Defendants to brief the Court as to why summary judgment
on these grounds would be inappropriate.

(Doc. 122).

Defendants filed their

supplemental briefs (Docs. 123, 124) and Plaintiffs responded (Doc. 125). This matter is
now ripe for review.
II.

STANDARD OF REVIEW
District courts review agency action under the “arbitrary and capricious” standard.

Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir. 2002). This
standard does not require the agency to have taken the best or most reasonable action
and does not permit the district court to review the agency’s action with the benefit of
hindsight. Druid Hills Civic Ass’n, Inc. v. Fed. Highway Admin., 772 F.2d 700, 708–09
(11th Cir. 1985). Rather, the agency’s action need only be a rational one which it selected
by following its established decision-making process. See id. A district court may
therefore only set aside an agency’s action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law [or found to be] without observance of
procedure required by law.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir.
2008) (quoting 5 U.S.C. § 706(2)) (internal quotation marks omitted). Agency action is
presumed valid until proven otherwise. Ohio Valley Envtl. Coal. v. Aracoma Coal Co.,
556 F.3d 177, 192 (4th Cir. 2009), cert. denied, 561 U.S. 1051 (2010). As such, the
district court’s review of agency action is “exceedingly deferential,” Van Antwerp, 526 F.3d
at 1360 (internal quotation marks omitted), and the court should defer to the agency’s

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interpretation of its own regulations where that interpretation is reasonable, United States
v. Larionoff, 431 U.S. 864, 872 (1977).
III.

DISCUSSION
Defendants move for summary judgment on numerous grounds. First, they argue

that Plaintiffs lack standing to challenge the Flyover Project under NEPA. Second,
Defendants assert that Plaintiffs’ claims are moot due to the substantial completion of the
Flyover Project. Third, Defendants state that Plaintiffs have run out of time to bring this
lawsuit, as their claims are barred by the APA’s six year statute of limitations or, in the
alternative, by the doctrine of laches. Fourth, Defendants affirm that the Flyover Project
was properly classified as a CE under NEPA. Finally, Defendants maintain that they took
the necessary “hard look” in evaluating and re-evaluating the Flyover Project’s potential
environmental impacts.
Because Defendants’ challenges to standing, mootness, and timing of suit cast
doubt upon whether the Court has subject matter jurisdiction—and, therefore, whether
the Court may consider this case in the first place—those issues must be resolved first.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). The Court will
then proceed to the merits.
A.

Standing

Standing to bring and maintain a lawsuit is fundamental to a federal court’s subject
matter jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340–42 (2006). “The
party invoking federal jurisdiction bears the burden of proving standing.”

Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992). On summary judgement, “the plaintiff
can no longer rest on . . . mere allegations, but must set forth by affidavit or other evidence
specific facts” proving that he has standing. Id. at 561 (internal quotation marks omitted).

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In order to prove standing, Plaintiffs must satisfy Article III’s constitutional standing
requirements and NEPA’s statutory standing requirements. See Lexmark Int’l, Inc. v.
Static Control Components, Inc., 134 S. Ct. 1377, 1386, 1388–91 (2014).

As to

constitutional standing, Article III requires Plaintiffs to establish three elements: (1) they
have suffered or are imminently threatened with a concrete and particularized injury-infact, (2) their injury was or will be caused by the action they challenge, and (3) it is likely,
as opposed to merely speculative, that the injury they face will be redressed by a
favorable judicial decision. See Lujan, 504 U.S. at 560–61, 572–73 nn.7–8. As long as
one of the Plaintiffs satisfies the standing inquiry, the lawsuit may proceed. See Bowsher
v. Synar, 478 U.S. 714, 721 (1986).
Defendants challenge Plaintiffs’ constitutional standing solely on the grounds that
they cannot establish the requisite injury-in-fact. (Doc. 112, pp. 16–21; Doc. 115, pp. 8–
10). In environmental cases like this one, Plaintiffs can establish the injury-in-fact element
by showing that they live near or use the affected area and that their aesthetic or
recreational enjoyment of the area will be diminished by the agency action they challenge.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000);
Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1280 (11th
Cir. 2015) (“[A]n individual plaintiff may show injury-in-fact ‘by attesting that he uses, or
would use more frequently, an area affected by the alleged violations and that his
aesthetic or recreational interests in the area have been harmed.’”). By way of sworn
affidavit, Plaintiff David Catina affirms that he works directly adjacent to the construction
site six days per week and that he fears the diminution of his ability to enjoy nearby
wetlands and natural areas in addition to health and safety injuries from the Flyover
Project in the form of exposure to hazardous substances and pollution. (Doc. 107, ¶¶ 5,

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9, 11–14). Because Mr. Catina has articulated an imminent threat to his concrete and
particularized interests at the hands of Defendants and a favorable judicial decision will
remedy the harm threatened, he has met Article III’s requirements. As a result, Plaintiffs
easily satisfy constitutional standing.
In addition to constitutional standing, Plaintiffs must also satisfy the two-pronged
statutory standing inquiry. First, Plaintiffs must fall within NEPA’s “zone of interests.”
Lexmark, 134 S. Ct. at 1388. Under this prong, the determination of whether Plaintiffs fall
within the zone of interests is generally “a straightforward question of statutory
interpretation,” requiring the Court to look to the statute’s purpose where that purpose is
unambiguous. Id. Overall, the zone of interests test “is not especially demanding” and
Plaintiffs will fall within NEPA’s zone of interests as long as their interests are not “so
marginally related to or inconsistent with the purposes implicit in the statute.” Id. at 1389
(internal quotation marks omitted). Second, Plaintiffs must demonstrate that their injuries
were proximately caused by Defendants’ wrongful conduct. Id. at 1390. Injuries that are
“too remote” from Defendants’ conduct will not suffice. Id. (internal quotation marks
omitted).
Defendants contend that Plaintiffs fall outside NEPA’s zone of interests because
they allege purely economic injuries. (Doc. 112, pp. 16–21). It is true that NEPA does
not confer standing to plaintiffs who claim only economic harm; there must be some nexus
between Plaintiffs’ injuries and harm to the environment. See Ouachita Watch League v.
Jacobs, 463 F.3d 1163, 1173 (11th Cir. 2006); cf. Pack v. Corps of Eng’rs of U.S. Army,
428 F. Supp. 460, 464 & n.1 (M.D. Fla. 1977) (“A financial interest in the outcome [of
NEPA litigation] is not in and of itself sufficient to exclude the plaintiffs from having
standing.”). However, Defendants read the word “environment” too narrowly, implying

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that the term only relates to matters of the biosphere and ecosphere. As the Court
discussed at length in its order on Defendants’ motions to dismiss, “NEPA’s zone of
interests can be said to include the environment, quality of life, land use and resource
management, economic growth, and public health and safety.” RB Jai Alai, LLC v. Sec’y
of Fla. Dep’t of Transp., 47 F. Supp. 3d 1353, 1362–63 (M.D. Fla. 2014). Indeed,
Congress defined NEPA’s purpose broadly to “encourage productive and enjoyable
harmony between man and his environment [and] to promote efforts which will prevent or
eliminate damage to the environment and biosphere and stimulate the health and welfare
of man.” 42 U.S.C. § 4321. In fact, NEPA takes special care to emphasize that it seeks
to promote the “human environment,” which includes both “the natural and physical
environment and the relationship of people with that environment.” 40 C.F.R. § 1508.14.
Defendants are therefore incorrect when they assert that Plaintiffs allege only
economic injuries. While Plaintiffs express concerns about the business they will lose
because of the Flyover Project, Plaintiffs also go into detail about how their injuries derive
from Defendants’ misuse of land and resources—namely, economic decay and blight—
as the elevated overpass is inconsistent with various local growth plans. 4 (Doc. 106,
¶¶ 15–21; Doc. 107, ¶¶ 15–18). Plaintiffs additionally fear harm to their health and safety
from the disturbance of sites which Defendants have identified as “high risk” and “medium
risk” for hazardous substance contamination. (Doc. 106, ¶¶ 8–9; Doc. 107, ¶¶ 8–9; see
also AR 0419–0420, 0628). Plaintiffs also complain that their aesthetic enjoyment of
nearby wetlands and natural areas will be obstructed by the Flyover Project. (Doc. 106,
¶¶ 11–12; Doc. 107, ¶¶ 11–12). Because land use, economic growth, public health and

4

In support, Plaintiffs have filed an Impact Analysis Report (Doc. 108-3) which finds
that the Flyover Project will significantly restrict access to surrounding businesses,
thereby impairing economic growth and redevelopment to the area.
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safety, and aesthetic concerns all comprise the “environment” which NEPA intends to
protect, Plaintiffs fall within the statute’s zone of interests. Moreover, the threatened
injuries to these environmental concerns are the proximate result of Defendants’ approval
and construction of the Flyover Project. The Court therefore finds that Plaintiffs satisfy
NEPA’s statutory standing requirements as well.
B.

Mootness

An extension of the standing doctrine, mootness bars a lawsuit “when it is
impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox
v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012) (internal quotation
marks omitted); see also Ouachita Watch League, 463 F.3d at 1175 (“A case is moot
when the issues no longer involve a live controversy with respect to which the court can
give meaningful relief.”). A moot case requires dismissal because “[a]ny decision on the
merits of a moot case . . . would be an impermissible advisory opinion.” Fla. Ass’n of
Rehab. Facilities, Inc. v. State of Fla. Dep’t of Health & Rehabilitative Servs., 225 F.3d
1208, 1217 (11th Cir. 2000). The heavy burden of proving that a case is moot rests with
the party claiming mootness and any doubts must be resolved in favor of finding a
justiciable controversy. Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000)
(per curiam).
Defendants contend that this case has become moot during the course of the
litigation because the Flyover Project is significantly finished, with more than 80% of
construction complete and over 96% of federal funds spent. (Doc. 123, pp. 13–14;
Doc. 124, pp. 13–15). Moreover, Defendants represent that the elevated overpass which
forms a significant basis of Plaintiffs’ complaints has been erected and is now open to

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traffic. (Doc. 124-3, ¶ 3). Defendants therefore conclude that the Court can no longer
provide the injunctive relief Plaintiffs seek in their Second Amended Verified Complaint.
However, a project that is substantially complete is, by definition, not complete.
Overall, Defendants provide an inadequate picture of what the remaining 20% of
construction encompasses. While the elevated overpass is open to traffic, other aspects
of the Flyover Project may warrant injunctive relief, including halting any remaining
construction or enjoining the disbursement of outstanding federal funds which were
procured in violation of NEPA and FAHA. The Court could also require Defendants to
conduct the appropriate environmental study required by NEPA and to take measures to
mitigate environmental damage caused by the Flyover Project. With these remedies
available, and all doubts being resolved in Plaintiffs’ favor, the Court concludes that it is
capable of providing meaningful relief. Accordingly, this case is not moot.
C.

Timeliness

Lastly, Defendants challenge the Court’s jurisdiction on the grounds that this
lawsuit is barred by the statute of limitations or, in the alternative, by laches. (Doc. 123,
pp. 2–7; Doc. 124, pp. 7–9). As mentioned earlier, neither NEPA nor FAHA provide
private rights of action; judicial review under these statutes may only proceed through the
APA, which Plaintiffs have done here. Native Ecosystems Council v. U.S. Forest Serv.,
428 F.3d 1233, 1238 (9th Cir. 2005). As such, lawsuits arising under NEPA and FAHA
are subject to the APA’s six year statute of limitations. Black Warrior, 781 F.3d at 1285–
86.
For purposes of calculating whether a claim is time-barred under the APA, the
limitations period begins to run from the date of final agency action. Ga. Power Co. v.
Teleport Commc’ns Atlanta, Inc., 346 F.3d 1047, 1050 (11th Cir. 2003). Final agency

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action occurs when “the agency has completed its decisionmaking process, and . . . the
result of that process is one that will directly affect the parties.” Franklin v. Massachusetts,
505 U.S. 788, 796–97 (1992). A merely “tentative” action is not a final agency action. Id.
at 797 (internal quotation marks omitted). The burden of proving that a lawsuit is barred
by the statute of limitations rests on Defendants. Smith v. Duff & Phelps, Inc., 5 F.3d 488,
492 n.9 (11th Cir. 1993).
Defendants argue that Plaintiffs’ claims are barred by the APA’s six-year statute of
limitations because the last final agency action occurred when FHWA issued the CE in
2004. (Doc. 112, pp. 21–24; Doc. 123, pp. 2–5; Doc. 124, pp. 7–9). As a result,
Defendants calculate that Plaintiffs’ NEPA and FAHA claims expired in 2010, well before
the start of this lawsuit. Defendants also disagree that they re-opened the limitations
period by re-evaluating the Flyover Project and confirming its status as a CE in 2005 and
2012. (Doc. 123, pp. 4–5; Doc. 124, pp. 7–9). Defendants reason that the subsequent
confirmation of a prior final agency action is not itself final agency action subject to review.
However, “[c]ourts have consistently held that the statute of limitations does not
bar review of agency actions that reopen a previously decided issue when the agency
reaches the same decision at a subsequent proceeding.” SLPR, LLC v. U.S. Army Corps
of Eng’rs, No. 06 CV 1327 MMA (POR), 2011 WL 1648732, at *5 (S.D. Cal. May 2, 2011);
see also Pub. Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147, 151–52 (D.C. Cir.
1990) (“[T]o the extent that an agency’s action necessarily raises the question of whether
an earlier action was lawful, review of the earlier action for lawfulness is not time-barred.”)
(internal quotation marks omitted), cert. denied, 498 U.S. 992 (1990). An agency may reopen a matter either explicitly or implicitly, and the question of whether an agency actually
re-opened a matter depends on the totality of the circumstances. Bluewater Network v.

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E.P.A., 370 F.3d 1, 16–17 (D.C. Cir. 2004). If the agency’s conduct demonstrates that it
“actually reconsidered [its action], the matter has been reopened.” Id. (internal quotation
marks omitted).
Here, Defendants’ conduct demonstrates that they actually reconsidered their
approval of the Flyover Project as a CE on two occasions, as required by NEPA and
FAHA.

See 23 C.F.R. § 771.129(c).

Most recently, Defendants conducted a re-

evaluation in 2012 to consider the potential environmental impacts of design changes to
the length of the elevated overpass and to the width of a median. (AR 0623–0637).
Defendants ultimately determined that these changes would involve no significant
impacts to the environment and affirmed the Flyover Project’s status as a CE. (AR 0624).
Accordingly, pursuant to Defendants’ ongoing duty to ensure the lawfulness of their
actions, they re-examined the Flyover Project in light of the changed circumstances,
reconsidered the project’s categorical exclusion, and determined that the CE
classification remained appropriate.

This conduct expressly re-opened the CE and

constitutes final agency action that began a new six-year limitations period, thus allowing
the initiation of the instant case until 2018. Because Plaintiffs filed their complaint in 2013,
the statute of limitations will not act to bar their lawsuit.
Moreover, the Court finds untenable Defendants’ rationale that it could not have
re-opened the limitations period just because it approved of its prior action. The policy
implications of adopting Defendants’ position are two-fold. First, federal agencies would
be encouraged to blindly approve all prior actions in order to elude challenges by plaintiffs.
Second, and as a corollary, where a federal agency foresaw substantial public
controversy or opposition to a major federal action, the agency would be encouraged to
approve the project far in advance in order to temper the potential backlash and then sit

15

on its decision (with the necessary periodic approvals) until it was ready to initiate the
project.

Both situations would effectively render the re-evaluation requirement

meaningless, a result Congress surely did not intend.
Plaintiffs’ lawsuit is also not barred by the doctrine of laches. Laches provides an
equitable defense to bar a lawsuit where the plaintiff knew of his right to bring his claims,
but failed to do so, effectively sitting on his rights to the defendant’s detriment. Black
Warrior, 781 F.3d at 1283. Therefore, in order to prove the laches defense, Defendants
must prove that Plaintiffs delayed in asserting their rights, Plaintiffs’ delay was
inexcusable, and Plaintiffs’ delay has caused Defendants’ undue prejudice. Id.
However, the United States Supreme Court recently re-affirmed the long-standing
principle that, “in face of a statute of limitations enacted by Congress, laches cannot be
invoked to bar legal relief.” Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1974
(2014). The reasoning, as the Petrella Court alludes, is intuitive: laches emerged as a
defense to suits brought in equity because there was no defined time limit within which a
plaintiff was required to bring his claim for relief; thus, there was a practical need for
parties to know that there was a point in time at which the specter of litigation no longer
loomed and their rights were settled. See id. at 1973–75. However, with the merger of
law and equity came the advent of the statute of limitations, which effectively dispensed
with the malleable and indeterminate laches inquiry in favor of a clear and definitive time
period in which a plaintiff must file his complaint. See id. As a result, where Congress
has acted to provide a statute of limitations, the laches doctrine affords no additional
defense. 5 Id. at 1973–74; see also id. at 1975 (“[W]e have never applied laches to

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It is worth noting that the Petrella Court left open the possibility that, notwithstanding
a statute of limitations, laches can be employed in “extraordinary circumstances” to
curtail the equitable relief sought by a plaintiff where his delay in bringing suit is “of
16

bar . . . claims for discrete wrongs occurring within a federally prescribed limitations
period.”) (footnote omitted); Merck & Co., Inc. v. Reynolds, 559 U.S. 633, 652 (2010)
(“Laches within the term of the statute of limitations is no defense at law[.]”) (quoting
United States v. Mack, 295 U.S. 480, 489 (1935) (internal quotation marks omitted));
Oneida Cnty., N.Y. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226, 244 n.16 (1985)
(noting that the “application of the equitable defense of laches in an action at law would
be novel indeed”). Conversely, it is only where a federal statute lacks such a limitations
period that a defendant may appeal to the laches defense. Petrella, 134 S. Ct. at 1974–
75 (referring to “the essentially gap-filling, not legislation-overriding, office of laches”).
Plaintiffs bring this case under NEPA and FAHA, which offer no explicit statute of
limitations on their own. Notwithstanding, the APA’s six year statute of limitations applies
to challenges arising under both statutes. Accordingly, because Plaintiffs brought their
claims within the statute of limitations provided by Congress, Defendants may not avail
themselves of the doctrine of laches. This lawsuit is therefore timely.
Having resolved the numerous questions regarding subject matter jurisdiction, the
Court proceeds to the merits.
D.

Use of Categorical Exclusions
1.

Regulatory Requirements

As described at the beginning of this Order, NEPA allows an agency to promulgate
its own standards for when a major federal project requires an EIS or when it may proceed
as a CE. 40 C.F.R. § 1508.4. FHWA did just that by enacting 23 C.F.R. § 771.117. In

sufficient magnitude.” Petrella, 134 S. Ct. at 1977–79. The Eleventh Circuit also
appears to recognize such a possibility. Black Warrior, 781 F.3d at 1286 n.10. The
Court will determine whether laches acts to limit any equitable relief Plaintiffs request
at the appropriate time.
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2004 when the Flyover Project was first classified as a CE, § 771.117 was divided into
subsections (a) through (e). Subsection (a) provides the general definition which all CEs
must satisfy under FAHA:
Categorical Exclusions (CEs) are actions which meet the
definition contained in 40 C.F.R. 1508.4, 6 and, based on past
experience with similar actions, do not involve significant
environmental impacts. They are actions which: do not
induce significant impacts to planned growth or land use for
the area; do not require the relocation of significant numbers
of people; do not have a significant impact on any natural,
cultural, recreational, historic or other resource; do not involve
significant air, noise, or water quality impacts; do not have
significant impacts on travel patterns; or do not otherwise,
either individually or cumulatively, have any significant
environmental impacts.
23 C.F.R. § 771.117(a) (2003) (footnote added).
Subsections (c) and (d) supply extensive, although non-exhaustive, lists of types
of projects which have been found to qualify as CEs under NEPA. Subsection (c) lists
projects—referred to as “undocumented” or “c-list” CEs—which do not directly involve
construction and are generally so minor in degree or scope that no documentation or
approval by FHWA is required. 7 U.S. Dep’t of Transp., Fed. Highway Admin., FHWA
Technical Advisory T6640.8A (1987) (hereinafter “FHWA T6640.8A”). 8 The parties and
the Court agree that the Flyover Project does not fall within this category of CEs.

6

7

8

Title 40 C.F.R. § 1508.4 provides the general definition of a CE under NEPA: “[A]
category of actions which do not individually or cumulatively have a significant effect
on the human environment . . . .”
Examples include landscaping, the installation of fencing, signage, and pavement
markers, improvements to rest areas and truck weigh stations, and railroad track
maintenance. See 23 C.F.R. § 771.117(c) (2003).
Available at http://environment.fhwa.dot.gov/projdev/impTA6640.asp#ce (last visited
June 30, 2015).
18

Subsection (d) lists projects—referred to as “documented” or “d-list” CEs—which
have “a higher potential for [environmental] impacts,” thus requiring documentation and
FHWA approval. FHWA T6640.8A. Subsection (d) identifies twelve types of projects:
(1)

Modernization of a highway by resurfacing, restoration,
rehabilitation, reconstruction, adding shoulders, or
adding auxiliary lanes (e.g., parking, weaving, turning,
climbing).

(2)

Highway safety or traffic operations improvement
projects including the installation of ramp metering
control devices and lighting.

(3)

Bridge rehabilitation, reconstruction or replacement or
the construction of grade separation to replace existing
at-grade railroad crossings.

(4)

Transportation corridor fringe parking facilities.

(5)

Construction of new truck weigh stations or rest areas.

(6)

Approvals for disposal of excess right-of-way or for joint
or limited use of right-of-way . . . .

(7)

Approvals for changes in access control.

(8)

Construction of new bus storage and maintenance
facilities in areas used predominantly for industrial or
transportation purposes . . . .

(9)

Rehabilitation or reconstruction of existing rail and bus
buildings and ancillary facilities . . . .

(10)

Construction of bus transfer facilities . . . .

(11)

Construction of rail storage and maintenance facilities
in areas used predominantly for industrial or
transportation purposes . . . .

(12)

Acquisition of
purposes . . . .

land

for

hardship

or

protective

23 C.F.R. § 771.117(d) (2003). The parties and the Court agree that FHWA approved
the Flyover Project as a d-list CE. (See AR 0402–0425).
Subsection (b) provides that, although a project may be classified as a CE under

19

subsections (c) or (d), FHWA must nevertheless undertake additional environmental
analysis where “unusual circumstances” exist, such as impacts to certain historic
properties or where a significant environmental controversy surrounds the project.
23 C.F.R. § 771.117(b) (2003). The parties and the Court agree that the Flyover Project
involves no unusual circumstances.

Finally, subsection (e) enables FHWA to add

projects to subsections (c) and (d) when “a pattern emerges of granting CE status for a
particular type of action.” Id. § 771.117(e).
2.

Defendants Improperly Classified the Flyover Project as a
Categorical Exclusion

Although Defendants initially classified the Flyover Project as a d-list CE and
subsequently affirmed that classification in 2005 and 2012, 9 the Court questioned those
determinations in its Rule 56(f) order. Specifically the Court indicated that the Flyover
Project “does not fall within, nor is it remotely similar to, any of [subsection (d)’s] listed
actions.” (Doc. 122, p. 4). The Court then asked Defendants to explain why the Flyover
Project was classified as a d-list CE and to provide case law in support. (Id. at p. 5).
Despite a valiant effort, the Court finds Defendants’ arguments unavailing and concludes
that the initial classification of the Flyover Project as a d-list CE violated NEPA’s
procedures. Although that initial classification is now beyond the Court’s review due to
the running of the statute of limitations, Defendants’ affirmance of the Flyover Project as
a CE in 2012 is not.

Because the 2012 affirmance equally violates NEPA (and

consequently FAHA), Plaintiffs are entitled to summary judgment.

9

For all relevant purposes, 23 C.F.R. § 771.117 remained unchanged when
Defendants re-evaluated the Flyover Project in 2005 and 2012. For simplicity’s sake,
the Court will hereinafter cite to § 771.117 without reference to year and the parties
should assume that the Court applies the 2003 edition of the regulation to Defendants’
initial CE determination and the 2011 edition of the regulation to the 2012 reevaluation.
20

To reiterate, § 771.117(d) provides a non-exhaustive list of the types of projects
that will generally qualify as CEs. Indeed, FHWA’s guidance on how to classify projects
under subsection (d) directs that “[t]he actions on the list should be used as a guide to
identify other actions that may be processed as CEs.” FHWA T6640.8A. Therefore,
although Defendants admit that the Flyover Project does not expressly fall within any of
the twelve enumerated categories of d-list CEs, they submit that it “resemble[s] various
examples listed in 771.117(d); namely (d)(1)–(3).” (Doc. 123, p. 10; Doc. 124, pp. 6–7).
The Court finds that the Flyover Project is not even remotely similar in scope to
those types of projects identified by Defendants or any other included in § 771.117(d).
The Flyover Project involves the construction of a four-lane, 112-foot-wide, three-span
elevated overpass which will allow traffic traveling on US 17-92 to cross SR 436 without
interruption. (AR 0407). The center span of the overpass will be 190 feet long with the
entire bridge structure reaching 375 feet in length. (Id.). A total of nine lanes of frontage
roads, two bicycle lanes, sodded buffers, and two sidewalks will also be added to US 1792’s ground level. (Id.). With these frontage road additions, US 17-92 will expand to 244
feet at its widest point. (See id.). Because of the size of the entire overpass structure,
certain roads near the intersection will be converted to “right-in right-out” only access,
meaning that traffic may only enter or exit these roadways by turning right with the flow
of traffic. (Id.). The Flyover Project will also expand SR 436 by adding three westbound
lanes of vehicular traffic. (Id.). Overall, the Flyover Project’s footprint will extend one mile
in each direction from the intersection of US 17-92 and SR 436 (AR 0406) and requires
an additional 10.35 acres of land, which Defendants propose to acquire by relocating
thirty-five business and one residence at a cost of just over $45 million (AR 0409;
Doc. 112-1, ¶ 4). Defendants estimate that the total cost of the Flyover Project will exceed

21

$70 million, of which more than $60 million will come from federal funds. (AR 0017;
Doc. 112-1, ¶ 14).
First, the Flyover Project is nowhere near the type of project contemplated by
subsection (d)(2), which affords CE status to highway safety and traffic operations
projects, such as the installation of ramp metering devices and lighting (i.e., street lights
and traffic signals). 23 C.F.R. § 771.117(d)(2); see also U.S. Dep’t of Transp., Fed.
Highway Admin., Ramp Metering: A Proven, Cost Effective Operational Strategy (2014). 10
Although the Flyover Project undoubtedly involves installing traffic signals and lighting, it
cannot be said with any degree of sincerity that building a massive highway overpass is
similar in scope.
Defendants’ comparison of the Flyover Project to those projects described by
subsection (d)(3) is similarly unconvincing.

That category of projects involves

rehabilitation and reconstruction projects to existing bridges or construction of abovegrade railroad crossings to replace existing at-grade crossings.

23 C.F.R.

§ 771.117(d)(3). Defendants hinge their comparison on the latter type of construction,
reasoning that an above-grade highway overpass should be considered the same type of
project as an above-grade railroad crossing. (Doc. 124, pp. 6–7). Although unavailable
at the time Defendants filed their supplemental briefs, recent case law from a Virginia
district court supports Defendants’ position. See Rio Assocs., L.P. v. Layne, No. 3:15-cv00012, 2015 WL 3546647, at *9 (W.D. Va. June 8, 2015) (upholding CE for highway
overpass project on the basis that “a highway [grade-separated interchange] is analogous
to a railroad [grade-separated interchange]”).

10

Available at
http://www.ops.fhwa.dot.gov/publications/fhwahop14020/fhwahop14020.pdf (last
visited June 30, 2015).
22

However, the Court finds such an analogy unreasonable. As a practical matter,
the Flyover Project does not involve the grade separation of an existing railroad crossing,
but rather enlarging a highway interchange via a 375-foot-long elevated overpass and
other roadway expansions on all sides. (AR 0406–0407).

The amount of land and

construction materials needed to transform the existing highway intersection into the
Flyover Project is simply mammoth compared to what is required to change the grade of
a single railroad crossing.
Moreover, Plaintiffs rightly emphasize that the overarching definition of a CE
precludes the Flyover Project from being lawfully classified as a CE under subsection
(d)(3). The reason above-grade railroad crossing projects can be classified as CEs is
that they involve no significant changes to travel patterns; the course of highway traffic
remains unaffected regardless of whether a railroad crosses above, below, or at the same
grade as the road it crosses. See 40 C.F.R. § 771.117(a); Van Raden v. City of Portland,
No. CV 01-233-BR, 2001 WL 34047031, at *1, 6 (D. Or. May 31, 2001) (affirming CE
under subsection (d)(3) for project that would replace five at-grade railroad crossings with
one above-grade crossing). The Flyover Project is therefore not comparable to a gradeseparated railroad crossing and cannot be categorically excluded under subsection (d)(3).
Defendants’ best argument lies in equating the Flyover Project with those projects
in subsection (d)(1): the “[m]odernization of a highway by resurfacing, restoration,
rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes.” 23 C.F.R.
§ 771.117(d)(1). Defendants specifically focus on reconstruction. (Doc. 124, p. 6).
A careful reading of subsection (d)(1) shows why the Flyover Project does not fall
within its gamut. It is certainly true that the Flyover Project involves the modernization of
a highway interchange; however, it is the method by which that modernization is

23

accomplished which distinguishes the Flyover Project from those projects categorically
excluded under subsection (d)(1).

The Flyover Project does not primarily involve

resurfacing, which would entail replacing the existing road surface with some form of
asphalt, concrete, tar, or other sealant. The Flyover Project similarly does not involve
restoration, rehabilitation, or reconstruction, which would entail placing the roadways back
in the same or similar condition as when they were first constructed, prior to any sort of
deterioration. 11 Finally, the Flyover Project simply cannot be described as a project to
add shoulders or auxiliary lanes.
By way of comparison, the vast majority of available case law bolsters the Court’s
conclusion that the Flyover Project is not the type of major federal action that can be
categorically excluded. In its Rule 56(f) order, the Court pointed the parties to the highway
project in West v. Secretary of the Department of Transportation, 206 F.3d 920 (9th Cir.
2000), as analogous to the Flyover Project. In West, the Washington State Department
of Transportation proposed an $18.6 million, two-stage highway interchange project. Id.
at 923. The first stage consisted of building a new four-lane, fully-directional interchange
on top of a current interstate highway, while the second stage involved various upgrades
to the interchange. Id. Upon reviewing the scope of projects listed by subsection (d), the
West court found that the interchange project was so large—involving massive quantities
of fill material, surfacing, and concrete—that it did not compare to any of the more minor

11

It is notable that § 771.117(d) clearly distinguishes between “construction” and
“reconstruction.”
For example, subsection (d)(5) categorically excludes the
“construction of new truck weigh stations or rest areas,” while subsection (d)(9)
categorically excludes certain “reconstruction of existing rail and bus buildings.”
Because regulatory language should be given its plain meaning, Evenson v. Hartford
Life & Annuity Ins. Co., 244 F.R.D. 666, 667 (M.D. Fla. 2007), it is clear that
“construction” and “reconstruction” are not to be read interchangeably as Defendants
imply (Doc. 124, p. 6).
24

projects listed under subsection (d), especially those labeled as restorative, rehabilitative,
or reconstruction. Id. at 928. Like the highway project in West, the Flyover Project is of
“a very different scale” than what subsection (d) contemplates. Id.
Ironically, all six of the cases Defendants discuss in their supplemental briefs also
lend support the Court’s conclusion that the Flyover Project was improperly classified as
a CE. In the only case Defendants cite that has precedential value for this Court, the
former Fifth Circuit affirmed the categorical exclusion of a project to rebuild a bridge
destroyed by a hurricane. Sierra Club v. Hassell, 636 F.2d 1095, 1097 (5th Cir. Unit B
Feb. 13, 1981). 12 The appellate court aptly noticed that “[t]he reconstruction project will
only restore an environmental situation that had existed for twenty-four years” and would
“not significantly alter the status quo” because the replacement bridge would be
essentially identical to the original bridge. Id. at 1099.
In Aquifer Guardians in Urban Areas v. Federal Highway Administration, 779 F.
Supp. 2d 542 (W.D. Tex. 2011), the court affirmed the categorical exclusion of a project
to add two onramps to connect an existing overpass with the road underneath. Id. at
551–53. The project’s ultimate goal was to increase safety and accessibility between the
two roadways, as drivers were previously required to exit the interchange and utilize side
streets to access the disconnected roadway. Id. Relying on deference to the agency’s
decision, the Aquifer Guardians court found the categorical exclusion of this project
reasonable. Id. at 555–56.
In Florida Keys Citizens Coalition, Inc. v. U.S. Army Corps of Engineers, 374 F.
Supp. 2d 1116 (S.D. Fla. 2005), the court affirmed a d-list CE for a portion of a highway

12

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
the Eleventh Circuit adopted as binding precedent all of the decisions of the former
Fifth Circuit that were handed down prior to October 1, 1981.
25

project that involved replacing an existing bridge, widening shoulders, and other minor
safety improvements. Id. at 1132, 1141. In analyzing the CE, the court specifically
distinguished the project from the project examined in West, noting that the scope of the
West project went far beyond the widening of shoulders and other minor safety
improvements. Id. at 1143–44. The Fla. Keys court additionally found that the project
under its review would not affect the capacity of roadways, but was merely intended to
increase safety. Id. at 1144.
In Hells Canyon Preservation Council v. Jacoby, 9 F. Supp. 2d 1216 (D. Or. 1998),
the court affirmed a d-list CE for the reconstruction of a road that was destroyed by
flooding. Id. at 1224–25, 1237. The reconstruction ultimately involved relocating the road
away from a nearby stream and elevating the road by twenty-five to thirty feet in order to
avoid future flooding. Id. at 1225–26. The court concluded that this type of project fit the
scope of a d-list project because the rebuilt road would be identical to the original,
therefore falling within “the plain meaning of the terms resurfacing, restoration,
rehabilitation, and reconstruction.” Id. at 1225, 1237.
In a case Defendants call “strikingly similar” to this one (Doc. 124, p. 12), the court
in Ware v. U.S. Federal Highway Administration, No. Civ.A. H-04-2295, 2006 WL 696551
(S.D. Tex. Mar. 15, 2006), aff’d, 255 F. App’x 838 (5th Cir. 2007) (per curiam), cert.
denied, 554 U.S. 919 (2008), affirmed a d-list CE for a highway improvement project
involving the construction of a single onramp to an existing overpass, auxiliary weaving
lanes, and adjacent noise barriers. Id. at *2–3. The Ware court found that this project
clearly fit the scope of a rehabilitative project, as no additional lanes would be constructed
to increase traffic capacity; rather, the project was limited to the minor purpose of
increasing overall safety and traffic flow. Id. at *21–22.

26

Finally, in Public Interest Research Group of New Jersey, Inc. v. Federal Highway
Administration, 884 F. Supp. 876 (D.N.J. 1995), aff’d, 65 F.3d 163 (3d Cir. 1995), the
court affirmed both a d-list CE to widen a two-lane highway to four lanes and the
subsequent re-evaluation of that CE after the project was modified to change the two
added lanes from primary lanes to HOV lanes. Id. at 879–82. Of importance to the court
in reaching its conclusion was the fact that this highway project was “designed to meet
existing demand,” as opposed to stimulating growth or accommodating future traffic
conditions. Id. at 891.
In their analyses of these cases, Defendants unduly focus on the purpose of the
projects at issue, concluding that projects intended to relieve traffic congestion by
increasing roadway capacity and safety may be categorically excluded under
subsection (d). (Doc. 124. pp. 11–12 & nn.11–12). However, it is not the purpose of a
project that permits its categorical exclusion, but rather its scope in comparison to the
types of projects described in those categories. In fact, the district courts in Ware and
Florida Keys explicitly rejected Defendants’ notion that capacity-increasing projects such
as the Flyover Project may be categorically excluded, finding that they are beyond the
scope of subsection (d).

Ware, 2006 WL 696551, at *21 (“The case law supports

the . . . distinction between ‘added capacity’ projects, which are not eligible for Categorical
Exclusion status, and ‘safety’ and ‘modernization’ projects, which are eligible.”) (emphasis
added); Fla. Keys, 374 F. Supp. 2d at 1141 (“[R]oadway reconstruction projects that do
not increase capacity, but provide safety improvements . . . are normally categorically
excluded from detailed NEPA study.”) (internal quotation marks omitted).
Indeed, these six cases illustrate the minor scale of the projects anticipated by
§ 771.117(d). D-list projects generally involve replacing infrastructure that already exists

27

or was destroyed, meeting current demands at present infrastructure, or increasing safety
and accessibility to present infrastructure—all types of projects which essentially maintain
the status quo. See Hassel, 636 F.2d 1095 at 1099. In contrast, the Flyover Project
consists of a massive endeavor to build new infrastructure to accommodate more traffic
and stimulate growth, which will be achieved through a brand new four-lane, 375-footlong elevated overpass and additional lanes of traffic. The projects contemplated by
subsection (d) pale in comparison. See also, e.g., No East-West Highway Comm., Inc.
v. Chandler, 767 F.2d 21, 26 (1st Cir. 1985) (affirming FHWA’s decision not to prepare
EIS for project to widen two-lane highway by fifteen feet); Piedmont Envtl. Council v. U.S.
Dep’t of Transp., 159 F. Supp. 2d 260, 289 (W.D. Va. 2001) (affirming d-list CE for project
to widen existing bridge), aff’d, 58 F. App’x 20 (4th Cir. 2003); Van Raden, 2001 WL
34047031, at *1, 6 (affirming d-list CE for project that would replace five at-grade railroad
crossings with one above-grade crossing); Citizens for the Scenic Severn River Bridge,
Inc. v. Skinner, 802 F. Supp. 1325, 1332–33 (D. Md. 1991) (affirming d-list CE for project
that would replace existing two-lane bridge with newer two-lane bridge), aff’d, 972 F.2d
338 (4th Cir. 1992).
IV.

CONCLUSION
The above review of § 771.117 and comparisons to other cases leads to the

inescapable conclusion that the Flyover Project cannot be categorically excluded under
NEPA. The Flyover Project, which principally involves increasing the capacity of the US
17-92/SR 436 corridor by constructing a new, four-lane elevated overpass, cannot be said
to be a project involving “restoration,” “reconstruction,” or “rehabilitation.” Moreover, the
magnitude of the Flyover Project far surpasses the scope of highway projects envisioned
by § 771.117(d). As a result, Defendants were required by NEPA and FAHA to prepare

28

either an EA or an EIS. Defendants failed to do so, rendering their 2012 confirmation of
the Flyover Project as a CE arbitrary and capricious.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Pursuant to Federal Rule of Civil Procedure 56(f)(2), Plaintiffs’ Motion for
Summary Judgment (Doc. 105) is GRANTED.
2. State Defendants’ Cross-Motion for Summary Judgment (Doc. 112) is
DENIED.
3. Federal Defendants’ Cross-Motion for Summary Judgment (Doc. 114) is
DENIED.
4. The Court will schedule a hearing to discuss appropriate remedies. A
separate notice will follow.
DONE AND ORDERED in Orlando, Florida on June 30, 2015.

Copies furnished to:
Counsel of Record

29