Highway J Citizens Group UA et al v. United States Department of Transportation et al

Filing 62

DECISION AND ORDER signed by Judge Pamela Pepper on 8/15/2016 GRANTING 49 the federal defendants' expedited non-dispositive motion to strike extra-record documents. The court further ORDERS that Exhibits A and B to the plaintiffs' motion for summary judgment [48-1] and [48-2] and the portions of the plaintiffs' brief that rely on those exhibits are STRICKEN. (cc: all counsel)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
HIGHWAY J CITIZENS GROUP, U.A.;
WAUKESHA COUNTY
ENVIRONMENTAL ACTION LEAGUE;
and JEFFREY M. GONYO,
Plaintiffs,
Case No. 15-CV-994-pp
v.
UNITED STATES DEPARTMENT OF
TRANSPORTATION; ANTHONY FOXX,
Secretary of Transportation; FEDERAL
HIGHWAY ADMINISTRATON; GREGORY
G. NADEAU, Acting Administrator for the
Federal Highway Administration; MARK
GOTTLIEB, Secretary of the Wisconsin
Department of Transportation,
Defendants.

DECISION AND ORDER GRANTING THE FEDERAL DEFENDANTS’
EXPEDITED NON-DISPOSITIVE MOTION TO STRIKE EXTRA-RECORD
DOCUMENTS (DKT. NO. 49)

After the plaintiffs filed their motion for summary judgment and
supporting brief, Dkt. No. 48, the federal defendants filed an expedited nondispositive motion to strike two exhibits that the plaintiffs had filed in support
of their motion: (1) portions of the 2001 Environmental Impact Statement
(“EIS”) prepared by the Federal Highway Administration in connection with a
prior project involving Highway 164 (Dkt. No. 48-1), and (2) a letter from
counsel for the federal defendants to counsel for the plaintiffs, dated

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February 22, 2016 (Dkt. No. 48-2). For the reasons stated below, the court will
grant the federal defendants’ motion to strike these two documents.
Judicial review of an agency’s decision generally is limited to the full
administrative record before the agency when it made its decision. Florida
Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985); 5 U.S.C. §706. The
complete administrative record includes all documents and materials directly
or indirectly considered by the agency, including evidence contrary to the
agency’s position. Univ. of Colorado Health at Mem. Hosp. v. Burwell, No. 141220, ____ F. Supp. 3d ___, 2015 WL 6911261, at *6 (D.D.C. Nov. 9, 2015).
“[T]he focal point for judicial review should be the administrative record already
in existence, not some new record made initially in the reviewing court.” Camp
v. Pitts, 411 U.S. 138, 142 (1973).
On March 2, 2016, the Federal Highway Administration (“FHWA”) filed
the certified administrative record (Dkt. No. 47); neither of the documents
which they ask the court to strike appears in that record. That administrative
record is entitled to a presumption that it is complete and accurate. Univ. of
Colorado, 2015 WL 6911261, at *6. To ensure that a court reviews only those
documents that were before the agency when it made its decision, parties may
not “supplement the record unless they can demonstrate unusual
circumstances justifying a departure from this general rule.” Dist. Hosp.
Partners, L.P. v. Burwell, 786 F.3d 46, 55 (D.C. Cir. 2015).
On December 14, 2015, the court had issued a scheduling order. Dkt.
No. 42. That order required that if the plaintiffs had any disputes regarding the
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contents of the administrative record, they had to notify the defendants of
those disputes by February 8, 2016. Id. at 1. The order further required that if
the parties couldn’t resolve any disputes about the record, the plaintiffs could
file a motion to supplement that record by March 7, 2016. Id. at 2. The
plaintiffs did not, between the date of the scheduling order and March 7, file a
motion asking the court to supplement the record with the two documents at
issue; indeed, they never have filed such a motion.
Instead, in their brief in support of their summary judgment motion (filed
fifteen days after that March 7, 2016 deadline), the plaintiffs made a number of
arguments based on a 2001 EIS prepared for the original Highway J project.
Dkt. No. 48 at 18. They stated, in a footnote, that “[a]lthough Defendants have
refused to include the 2001 EIS in the [administrative record], this Court
nevertheless ‘may take judicial notice of publicly available documents when the
contents are “not subject to reasonable dispute” and are “capable of accurate
and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.”’” Id. at n. 4 (citations omitted).
With regard to the February 22, 2016 letter from counsel for the federal
defendants to the plaintiffs, the plaintiffs argued in the summary judgment
brief that the federal defendants sent them this letter in response to their
request that the defendants supplement the administrative record with
documentation regarding the FHWA’s decision to fund the current Highway J
project, or in the alternative, to explain the absence of such documents in the
administrative record. Id. at 28. The plaintiffs argued that the February 22,
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2016 letter, in which the federal defendants’ counsel explained why the FHWA
did not prepare an EIS or an Environmental Assessment in connection with the
current Highway J project, constituted an admission that the FHWA “flagrantly
violated” the National Environmental Protection Act by approving federal
funding for the project before initiating a NEPA review process. Id.
The federal defendants argue in the instant motion that the court should
strike the portions of the 2001 EIS and the February 22, 2016 letter (and the
portions of the plaintiffs’ brief that rely on them) because (1) neither is a part of
the administrative record that was before the agency when the agency made
the decision now under review, (2) the plaintiffs did not file a motion asking the
court to supplement the administrative record to include them, and (3) as to
the portions of the 2001 EIS, judicial notice is not an appropriate means to
expand the administrative record in a case governed by the Administrative
Procedure Act. Dkt. No. 49. The plaintiffs responded that a motion to expand
the record to include the 2001 EIS would have been an unnecessary burden on
the court, because the court could take judicial notice of that document. The
plaintiffs also responded that the federal defendants’ motion should be
summarily denied as to the February 22, 2016 letter, because the letter is a
party admission and because the federal defendants’ motion failed to explain
why the court could not consider it. Dkt. No. 50.
The court is not persuaded by the plaintiffs’ arguments. First, with
regard to the portions of the 2001 EIS: The parties do not dispute that the
2001 EIS exists, that it was part of the administrative record related to a prior
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Highway 164 construction project, and that the court can take judicial notice
of the fact that this document exists. In order for this court to consider the
2001 EIS in reaching a decision on the merits in this case, however, the court
must determine (1) whether the 2001 EIS is part of the administrative record
for the current Highway 164 Reconditioning Project and, if not, (2) whether the
2001 EIS constitutes extra-record evidence that is relevant to the merits of this
case.
There is no question that the 2001 EIS (or the portions the plaintiffs cite)
is not a part of the administrative record in this case. Nor is there any dispute
that, despite their “strong” disagreement with the defendants’ failure to include
the document in the administrative record in this case, Dkt. No. 50 at 2, the
plaintiffs did not file a motion asking this court to supplement the
administrative record with the document, despite the court having given them
a deadline by which to do so. Thus, the 2001 EIS constitutes “extra-record”
evidence.
Nonetheless, the plaintiffs argue that the court should not strike the EIS,
for two reasons. First, the plaintiffs argued in their response brief to the motion
to strike that the 2001 EIS “was indisputably ‘before the agency’ at the time
FHWA made its decision to fund the current Highway J project . . . .” Id. at 1-2
n.1. If the 2001 EIS was before the agency when it made its decision, then the
plaintiffs would appear to be correct that it should have been part of the
administrative record in this case. Under that circumstance, if the defendants

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refused to make it a part of that record, the plaintiffs should have moved the
court to supplement the administrative record to include it.
In defending their failure to take that action, the plaintiffs contend that
for them to file a motion to supplement the administrative record in this case
would have been a waste of the court’s time, because the court simply could
take judicial notice of the 2001 EIS. The court agrees that it can take judicial
notice of the fact that the EIS exists. But the plaintiffs ask the court to accept
the content of the 2001 EIS and to rely on that content in deciding the merits of
this case. That is not the function of judicial notice—as even the plaintiffs seem
to recognize, when they quote from the language of Fed. R. Civ. P. 201(b).
Judicial notice is a litigation shortcut; it allows parties to avoid having to
prove things like the fact that Highway J is located in Washington County in
the State of Wisconsin, or that there was litigation about a previous Highway J
project. Those kinds of facts generally are known as legislative facts. The
plaintiffs are asking this court to take judicial notice of adjudicative facts—
determinations made by an agency under different circumstances in a different
case, and clearly subject to dispute because they were disputed in the earlier
litigation.
[T]aking judicial notice is typically an inadequate mechanism
for a court to consider extra-record evidence when reviewing an
agency action. Because review of an agency decision is limited to
the administrative record before the agency at the time of the
decision, judicial notice of an adjudicative fact not part of the
administrative record generally is irrelevant to the court’s analysis

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of the merits. Instead, a court may only consider an adjudicative
fact subject to judicial notice that is not part of the administrative
record if it qualifies for supplementation as extra-record evidence .
...
Dist. Hosp. Partners, L.P. v. Sebelius, 971 F. Supp. 2d 15, 32 n.14 (D.D.C.
2013) (citing Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir.
1984); Cnty. of San Miguel v. Kempthorne, 587 F. Supp. 2d 64, 78–79 (D.D.C.
2008)).
The court will not take judicial notice of the substance of the 2001 EIS.
The plaintiffs should have filed a motion asking to supplement the record with
the 2001 EIS; they did not, and the court will grant the defendants’ motion to
strike it as extra-record evidence.
It is likewise clear that the defendants’ February 22, 2016 letter is not
part of the administrative record, and that the plaintiffs did not file a motion to
supplement the record with that letter (or with documents they may have
believed existed that might shed light on the FHWA’s decision to fund the
Highway J project). The plaintiffs argue that because the defendants did not
explain why the letter should not be included in the record, the court should
deny the defendants’ motion to strike it. This argument is circular at best. The
defendants did explain why the letter should not be included—the plaintiffs
failed to file a motion asking the court to include it. The plaintiffs had time to
ask the court to include the letter—the letter is dated February 22, 2016, and
the deadline for the plaintiffs to file a motion asking to supplement the record
was two weeks later, on March 7, 2016. They did not do so, and thus the letter
is extra-record evidence.
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The plaintiffs also imply that the February 22, 2016 letter from the
defendants’ counsel is the admission of a party opponent under Fed. R. Evid.
801(d)(2), as well as an “admission” in the confessional sense, codified in the
Rules of Evidence as a statement against interest when the declarant is
unavailable, under Fed. R. Evid. 804(a) and (b)(2). Dkt. No. 50 at 2. It is not
clear how either of these arguments is relevant to the fact that the letter is not
part of the record subject to review. The question before a court on review of an
agency record is not whether a document constitutes hearsay; it is a question
of whether the document was part of the record that the agency reviewed in
making its determination. The February 22, 2016 letter was not part of the
record the agency reviewed prior to making its determination on the current
Highway J project. The court will grant the federal defendants’ motion to strike
this letter and the portions of the plaintiffs’ brief that rely on it.
As the court noted at the outset, the administrative record the
defendants filed is presumed to be accurate and complete unless the plaintiffs
successfully move the court to supplement it. The two documents at issue are
not part of the administrative record, and the plaintiffs did not timely file a
motion asking the court to supplement that record with these documents.
Accordingly, the court ORDERS that the defendants’ Motion to Strike
Extra-Record Documents is GRANTED. Dkt. No. 49. The court further
ORDERS that Exhibits A and B to the plaintiffs’ motion for summary

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judgment (Dkt. Nos. 48-1 and 48-2) and the portions of the plaintiffs’ brief that
rely on those exhibits are STRICKEN.
Dated in Milwaukee, Wisconsin this 15th day of August, 2016.

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