Opinion
CIVIL ACTION NO. 02-2207 SECTION "N"
March 17, 2004
ORDER AND REASONS
Before the Court are the following motions: (1) Federal Defendant HUD's Motion to Dismiss, and (2) Plaintiffs' Motion for Summary Judgment. For the reasons that follow, HUD's motion to dismiss is GRANTED. The motion filed by plaintiffs is therefore DISMISSED as moot.
I. BACKGROUND
In 1996, the Housing Authority of New Orleans ("HANO") applied to the United States Department of Housing and Urban Development ("HUD") for a grant to revitalize the St. Thomas Housing Development, a decaying 1,510 — unit public housing property in New Orleans. HUD agreed to provide a $25 million grant through its HOPE VI program. In addition to obtaining the HUD grant, HANO has brought together state, local, and private funding for the revitalization project (the "Project").
In September 2000, HUD completed an initial review of the Project's impact on historical properties, as required under the National Historic Preservation Act ("NHPA"). This review resulted in a Memorandum of Agreement ("MOA") among HANO, the State Historical Preservation Officer ("SHPO"), and the Advisory Council on Historic Preservation ("ACHP"). HUD then reopened the NHPA review in November 2001, after it was announced that a Wal-Mart Superstore would occupy a retail space in the Project. An amended MOA was entered into among HUD, HANO, the SHPO, and ACHP, with the last signatory signing on February 1, 2003. (AR 2617-2636).
In July 2002, the plaintiffs (a group of non-profit organizations, including a local merchant's association and a neighborhood association) filed this suit. The original complaint sought: (1) a declaratory judgment finding that HUD and HANO failed to comply with the NHPA and the National Environmental Protection Act ("NEPA"); and (2) an injunction compelling HUD to withhold all HOPE VI funds from HANO until HANO is determined to be in compliance with NEPA and the NHPA. See Compl. at ¶¶ 108-09.
Subsequent to plaintiffs' filing suit, HUD reopened its NEPA review, which previously had resulted in an environmental assessment ("EA") and finding of no significant impact ("FONSI"). While the reopened NHPA and NEPA reviews were still pending, plaintiffs filed a motion for partial summary judgment and permanent injunction. This Court denied the motion on February 27, 2003, finding the plaintiffs' claims to be unripe. (Rec.Doc. 93).
HUD completed its NEPA review on February 20, 2003, with a final EA and FONSI. (AR 01-13). Upon learning of the new EA and FONSI, plaintiffs filed a motion for temporary restraining order, seeking to prevent the transfer of the Wal-Mart property site to the developer (HRI). (Rec.Doc. 95). The Court held a status conference, at which HANO informed the Court that the transfer was scheduled to take place on April 15, 2003. The Court denied the motion for temporary restraining order and set an expedited schedule for production of the administrative record and motion practice. (Rec.Doc. 102).
Although HUD had a pending motion before this Court seeking to dismiss plaintiffs' claims as unripe (due to the ongoing reviews), HUD did not inform the Court when it issued the new EA and FONSI. Thus, when the Court issued its ruling on February 27, 2003, staying plaintiffs' claims as unripe, the Court was under the misimpression that the NEPA review was still pending.
During the pendency of NEPA and NHPA reviews, HUD had prohibited HANO from transferring title to the property to the developer (HRI), thereby restricting work on the Project to: (1) infrastructure work on the residential portion of the Project; and (2) environmental remediation.
Pursuant to that expedited schedule, HANO filed a Motion for Summary Judgment, seeking dismissal of plaintiffs' Complaint on the grounds that HUD's review of the Project complied with NEPA and NHPA, and that plaintiffs lacked standing. Federal Defendant HUD and intervenor HRI likewise filed their own Motions for Summary Judgment, seeking dismissal of the Complaint based on compliance with NEPA and with NHPA Plaintiffs, in turn, moved for summary judgment, granting the relief requested in their Complaint, and for a permanent injunction stopping all work on the Project until such time as an EIS was completed under NEPA and the Section 106 review was completed under NHPA. Oral argument was set for and held on April 10, 2003.
After the motions were filed and before the Court ruled, plaintiffs filed a Second Supplemental and Amending Complaint, which largely reiterated the claims originally made, simply having added the new EA and FONSI and the amended MOA to the original agency findings. (Rec.Doc. 109).
The Court ruled on the motions on April 11, 2003. The Court denied the plaintiffs' Motion for Summary Judgment and Permanent Injunction. In ruling on HUD's Cross Motion for Summary Judgment, the Court granted the Motion in part, dismissing plaintiffs' claims under NHPA and plaintiffs' claims under NEPA insofar as they related to the February 20, 2003 EA/FONSI, and denied the Motion in part, on the issue of mootness. The Court thereafter denied as moot the Motions for Summary Judgment filed by HANO and by HRI.
In denying HUD's Motion in part, the Court found that genuine issues did exist concerning the plaintiffs' potential recovery of attorneys' fees as a "prevailing party" and the application of the "catalyst theory" to the facts. See Rec.Doc. 127 at p. 10 (the Court is "unconvinced . . . that HUD is entitled to judgment as a matter of law dismissing plaintiffs' claim for attorneys' fees as it relates to the original EA/FONSI"). At the time the Court rendered Judgment, however, the Court did not have before it any arguments advanced by defendants regarding the Supreme Court's decision in Buckhannon Board and Care Home. Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001). In Buckhannon, the Supreme Court explicitly rejected the catalyst theory as a basis for the recovery of attorneys' fees as a "prevailing party" under the Fair Housing Amendments Act ("FHAA"), 42 U.S.C. § 3601, et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.
II. LAW AND ANALYSIS
HUD presently asks this Court to find that "there is no case or controversy with regard to Plaintiffs challenge to the original EA/FONSI" and to issue an Order, pursuant to Fed.R.Civ.P. 12(b)(1), dismissing Plaintiffs' action in its entirety. (Rec.Doc. 171 at p. 1). Plaintiffs argue that the original MOA and the original EA/FONSI were inadequate; that a live case or controversy does exist; and that the doctrine of "capable of repetition yet evading review" precludes dismissal of plaintiffs' Complaint.
A. Standing :
This Court set forth the applicable law governing standing in its February 27? 2003 ruling, and will not reiterate it here. (Rec.Doc. 93). In that ruling, the Court held that two of the plaintiffs (Coliseum Square Association and Historic Magazine Row Association) had satisfied the requisites of representational standing at the time of their filing the Complaint(s).
B. Mootness
To sustain jurisdiction in the instant matter, it is not enough that a dispute was alive when suit was filed; instead, "an actual controversy must be extant at all stages of review." Preiser v. Newkirk, 422 U.S. 395, 402-403 (1975). Stated otherwise, "`[t]he requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).'" Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th Cir. 1998) (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980)). "Under [the mootness] doctrine, although a justiciable controversy may have existed at the time litigation was commenced, the action must be dismissed for want of jurisdiction if the controversy ceases to exist at some point in the litigation." Dailey, 141 F.3d at 227.
"A case may become moot for several reasons;" one such reason is an intervening factual event. Id. "A case is not moot, though, only because a defendant voluntarily ceases the allegedly improper behavior that is the subject of the lawsuit." Christian Coalition of Ala. v. Cole, 2004 WL 34832 *2 (11th Cir.). See also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000). "Only when the defendant can demonstrate there is no reasonable expectation that the wrong will be repeated are federal courts precluded from deciding the case on mootness grounds." Christian Coalition, 2004 WL 34832 *2 (internal quotations omitted). See also Laidlaw, 528 U.S. at 189. The party asserting the mootness — here, HUD — has the "heavy burden of persuading" the court that the challenged conduct cannot reasonably be expected to start up again, Laidlaw, 528 U.S. at 189.
1. NHPA
In the April 11, 2003 decision, the Court granted summary judgment in favor of HUD with regard to plaintiffs' NHPA claims. (Rec.Doc. 127). The Court determined that "plaintiffs . . . failed to demonstrate any genuine issue of fact and that HUD is entitled to judgment as a matter of law dismissing plaintiffs' NHPA claims." (Rec.Doc. 127, pp. 5-6) (emphasis added). Plaintiffs therefore have no NHPA claims remaining to adjudicate, for the Court to now reconsider plaintiffs' NHPA claims based on the original MOA would violate the "law of the case" doctrine. See In the Matter of David J. Felt, 255 F.3d 220, 225, cert. denied, Felt v. Office of Thrift Supervision, 534 U.S. 1078 (2002).
"Under the `law of the case' doctrine, a decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation." F.D.I.C. v. McFarland, 243 F.3d 876, 884 (5th Cir. 2001) (citations and quotations omitted). "This doctrine applies regardless of whether the issue was decided expressly or by necessary implication." Id.
2. NEPA
The NEPA violations, according to plaintiffs, concern alleged inadequacies and procedural defects in the original and supplemental EA/FONSI, as well as the addition of the Wal-Mart Superstore to the Project, prior to the preparation of a Supplemental EA and FONSI (or EIS, if so required). See, Compl. at ¶ 32.
On April 11, 2003, the Court upheld the Supplemental EA/FONSI as legally sufficient. "In dismissing plaintiffs' NEPA claims insofar as they relate to the February 20, 2003 EA and FONSI" (Rec.Doc.127 at p. 9), the Court found that a review of the administrative record revealed "that HUD did evaluate the issues raised by the plaintiffs, including: potential impacts of noise, vibration, lead, drainage, and increased traffic; issues of environmental justice; potential impacts on historic properties; potential economic impact; local zoning laws; and alternatives to the Project." (Rec.Doc.127 at p. 8).
By effect of the April 11, 2003 partial dismissal, the only claims of plaintiffs that remained were those relative to the original EA/FONSI. However, in that same Order, the Court stated that "the relief for remedying a deficiency in the original EA/FONSI deficient [sic] is now moot." (Rec.Doc. 127 at p. 10). Nevertheless, the Court denied, in part, HUD's Motion for Summary Judgment on the issue of mootness, as the Court was "unconvinced . . . that HUD is entitled to judgment as a matter of law dismissing plaintiffs' claim for attorneys' fees as it relates to the original EA/FONSI." Id.
HUD now asserts the argument that logically follows, i.e., that because the plaintiffs effectively have received the relief they sought in bringing their NEPA challenge with regard to HUD's original EA/FONSI, there no longer exists a live case or controversy, and without such a dispute, this Court no longer has jurisdiction over the matter.
In opposing HUD's motion, plaintiffs argue that Federal Defendant HUD has not met its "heavy burden of persuading the court that the challenged conduct cannot be reasonably expected to start up again." Plaintiffs also argue that the instant matter falls within the "capable of repetition, yet evading review" exception to mootness.
In their first argument — that HUD has not met its burden, the plaintiffs rely heavily on a Clean Water Act case, Friends of the Earth, Inc. v. Laidlaw Environmental Services, 523 U.S. 167 (2000). In Laidlaw, the Supreme Court granted certiorari to address the Fourth Circuit's decision that a citizen suit plaintiff's claim for civil penalties must be dismissed when the defendant — after initiation of the litigation — had come into voluntary compliance with its permit. Laidlaw, 528 U.S. 180. The Court found that the Fourth Circuit had erred by conflating Supreme Court caselaw on standing and mootness, and reasserted that a defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case. Id. at 173-174. Specifically, in its discussion of mootness, the Court noted that the case might become moot if Laidlaw's voluntary compliance with its permit or closure of the wastewater treatment facility "made it absolutely clear that Laidlaw's permit violations could not reasonably be expected to recur." Id. at 193. The Court remanded to allow the lower court to consider the disputed facts of "[t]he effect of both Laidlaw's compliance and the facility closure on the prospect of future violations. . . ." Id. This remand was necessary, even in light of the asserted closure of the facility, in pan because Laidlaw had retained its NPDES permit. Id. at 194.
In Laidlaw, the district court had denied injunctive relief. The only issue, therefore, was the mootness of the civil penalties, awarded by the district court in order to deter Laidlaw from violating the Clean Water Act. Laidlaw, 528 U.S. at 193.
In this case, however, there is no reasonable expectation of HUD's resuming the challenged activity. This is not a case like Laidlaw, where the defendant retained a NPDES permit; where the court had found numerous violations of that permit; and where statutory civil penalties were available to deter future violations. Here, HUD supplemented the original EA/FONSI to review in greater detail the effect the Project, including the Wal-Mart Superstore, will have on the environment. HUD's decision to move forward with the Project is based on the February 20, 2003 EA and FONSI, which this Court has determined to be procedurally adequate. While any actions taken in the time period between the Original EA/FONSI and Supplemental EA/FONSI may not be palatable to the plaintiffs, nonetheless, any such actions fall within the scope of the Supplemental EA/FONSI.
In addition, plaintiffs argue that the dispute falls within the "capable of repetition, yet evading review" exception to the mootness doctrine, and that the suit therefore remains justiciable. Plaintiffs' contention is flawed, however. Because this exception to the mootness doctrine "permits suits for prospective relief to go forward despite abatement of the underlying injury," it is found only in "exceptional situations." Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990) (citing Los Angeles v. Lyons, 461 U.S. 95, 109(1983)). Such "exceptional situations" exist only where the following circumstances are simultaneously present: "`(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.'" Lewis, 494 U.S. at 481 (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982) ( per curiam) (quotation omitted). Neither of these requirements is satisfied here.
Plaintiffs erroneously rely on Super Tire Engineering Company v. McCorkle 416 U.S. 115, 125 (1974) to support their position that the requested declaratory relief pertaining o the original EA/FONSI falls within the exception and is not moot. In Super Tire, the petitioner employer was engaged in cyclically recurring bargaining with the union representing its employees, and the respondent state official was continuously following a policy of paying unemployment compensation benefits to strikers. Even though the particular strike which had been the occasion for the filing of the lawsuit was terminated, the Court held that it was enough that the petitioner employer showed "the existence of an immediate and definite governmental action or policy that has adversely affected and continues to affect a present interest." 416 U.S. at 125-26. The Court further noted that "the great majority of economic strikes do not last long enough for complete judicial review of the controversies they engender." Id. at 126. See accord Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973) (the pregnant appellants had long since outlasted their pregnancies by the time their cases reached the Supreme Court, yet the Court had no difficulty rejecting suggestions of mootness); Storer v. Brown, 415 U.S. 724 (1974) and Rosario v. Rockefeller, 410 U.S. 752 (1973) (cases concerning various challenges to state election laws).
By attaching the affidavits of John Wettermark and Elizabeth Marshal Stout, plaintiffs seek to illustrate to this Court that the defendants plan other additions to the project which were not subject to the NEPA review process. Hence, plaintiffs claim entitlement to declaratory relief even in the current posture of this case because defendants are allegedly failing to comply with those legal requirements. Plaintiffs therefore urge that indeed defendants' conduct falls within the scope of the "capable of repetition" exception in that defendants are shirking their responsibilities under NEPA with regard to the new aspects described in the Wettermark and Stout affidavits. This, however, is an extraordinarily broad reading of the "capable of repetition, yet evading review" exception to the mootness doctrine.
The alleged proposal added 50,000 to 60,000 square feet of additional retail space and a 30,000 square foot YMCA facility.
First of all, were defendants to choose a project significantly different from that subject to the February 20, 2003 review, by definition this would not be a "repetition" of the prior plan. The specific project which was the subject of the February 20, 2003 review has been and will henceforth be subject to the February 20, 2003 NEPA review, which this Court has found to be legally sufficient. A "new" project would, perhaps, raise questions as to compliance with NEPA, to the extent those laws are applicable to the new plan, but surely would not be a "repetition" of commencement of the existing project.
Cf. Vieux Carre Property Owners, Residents and Assoc., Inc. v. Brown, 948 F.2d 1436, 1447-48 (5th Cir. 1991) (finding that plaintiffs met repetition prong of "capable of repetition, yet evading review" exception, as the "expectation of future development of the riverfront park on other wharfs of the MS River in the historic district makes the alleged harm to [plaintiffs] capable of repetition."). Unlike the case sub judice, Vieux Carre involved the "unique situation where the absence of review by the appropriate government agency made uncertain the mooting affect of substantially completed construction." Benavides v. Housing Auth. of City of San Antonio, 238 F.3d 667, 670 (5th Cir. 2001) (emphasis added). Cf. also Missouri Coalition for the Env't. v. Corps of Eng'rs of the U.S. Army, 866 F.2d 1025, 1029-30 (8th Cir. 1989), cert. denied, 493 U.S. 820 (1989), a case dissimilar factually and procedurally from the case sub judice.
Unlike the entity allegedly contaminating water in Laidlaw, or the state's alleged use of public funds to benefit striking workers in Super Tire Engineering Company, HUD and HANO logically cannot again create the same project which was the subject of the February 20. 2003 NEPA review, and now embark upon it without complying with NEPA. Quite simply, plaintiffs' complaint about other plans, or portions of projects, or proposed additions to the existing project, are not "repetitions", but rather raise new issues not part of the project as it existed on February 20, 2003, not presently before the Court, and thus not a repetition of conduct placed at issue before the Court as part of this litigation. The potential, or even anticipated, future violation of the same laws by the defendants in other respects does not, in itself, invoke the "capable of repetition, yet evading review" exception.
As a further note, the Court finds that the failure to supplement an EA is not the sort of action which, by reason of the inherently short duration of the opportunity for remedy, is likely forever to evade review. Cf. Alaska Fish Wildlife Fed'n v. Dunkle, 829 F.2d 933, 939 (9th Cir. 1987), cert. denied, 485 U.S. 988 (1988) (action not moot as "regulation challenged was in effect for less than one year, making it difficult to obtain effective judicial review."). If plaintiffs deem that a change in the Project is major and requires the preparation of a supplemental EA, there will be ample time to obtain judicial review of the assessment.
Because the Court today finds that plaintiffs' remaining NEPA claims, if any, have been rendered moot and do not fall within any exception to the mootness doctrine, there is no longer a dispute, or live case or controversy, for the Court to decide. Without a live case or controversy, the limitation on this Court's Article III powers is invoked. Therefore, Federal Defendant HUD is entitled to judgment as a matter of law, dismissing plaintiffs' Complaint, insofar as it relates to the NEPA claims.
3. Attorneys' Fees
The Court has acknowledged that there also remains the issue of whether plaintiffs are entitled to recover attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, et seq. ("EAJA"), for prompting HUD 10 reopen its NEPA review. (Rec.Doc. 127 at p. 10). Plaintiffs' EAJA claim, however, cannot serve as the basis to create a live case or controversy with regard to HUD's original EA/FOKSI, See generally Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990) (an "interest in attorney's fees is . . . insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim." (citation omitted)). Rather, any claim for attorneys' fees is collateral to plaintiffs' underlying merits claim. See FCC v. League of Women Voters, 468 U.S. 364, 373-74, n. 10 (1984); Budnich v. Benton Dickenson and Co., 486 U.S. 196, 202-203 (1988). Because the Court today is dismissing all of plaintiffs' underlying claims, plaintiffs' entitlement to attorneys' fees, if any, will not preclude a finding of mootness in the instant matter.
While plaintiffs have not filed a motion for attorneys' fees, the Court finds it necessary to address arguments advanced by defendants which suggest that current caselaw precludes any award of attorneys' fees in the instant matter.
The Court agrees with the defendants in that the only theory under which plaintiffs could potentially argue that they are a "prevailing party" for the purpose of recovering attorneys' fees would be the "catalyst theory," which provides that a plaintiff is a "prevailing party" if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct. See generally Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598 (2001). However, the Supreme Court in Buckhannon explicitly rejected the catalyst theory. See id. at 605. Specifically, the Court held:
Title 18 of the United States Code, Section 2412 provides, in pertinent part, that a "court may award reasonable fees and expenses of attorneys . . . to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity . . ." (Emphasis added).
A defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents . . . counsel against holding that the term "prevailing party" authorizes an award of attorney's fees without a corresponding alteration in the legal relationship of the parties.Id. Although petitioners in Buckhannon requested attorneys' fees as the "prevailing party" under the Fair Housing Amendments Act ("FHAA"), 42 U.S.C. § 3601, et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., the Buckhannon holding applies with equal force to cases in which attorneys' fees are sought under NEPA through the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, et seq. See, e.g., N.C. Alliance for Transp. Reform, Inc. v. United States DOT, 151 F. Supp.2d 661, 673 n. 11 (M.D.N.C. 2001).
While HUD did re-open its review process subsequent to plaintiffs' filing suit, there is no action taken by this Court whereby plaintiffs could be considered a "prevailing party" for purposes of the EAJA. Therefore, in light of this Court's dismissal of the Complaint in its entirety and in accordance with the Buckhannon decision, no basis exists for plaintiffs to seek attorneys' fees in this matter.
Notably, plaintiffs have admitted that, under Buckhannon, a ruling "in HUD's favor on the Motion co. Dismiss . . . would preclude any attorney fees application by plaintiffs." (Rec.Doc. 178 at p. 1).
III. CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that:
(1) Federal Defendant's (HUD's) Motion to Dismiss is GRANTED, dismissing plaintiffs' claims; and
(2) Plaintiffs' Motion for Summary Judgment is DISMISSED as moot.