United States District Court, E.D. Wisconsin
HIGHWAY J CITIZENS GROUP, U.A.; WAUKESHA COUNTY ENVIRONMENTAL ACTION LEAGUE; and JEFFREY M. GONYO, Plaintiffs,
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)
PAMELA PEPPER United States District Judge.
the plaintiffs filed their motion for summary judgment and
supporting brief, Dkt. No. 48, the federal defendants filed
an expedited non-dispositive 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 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.
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. 14-1220, ___ 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,
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.
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 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.
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
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, 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.
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.
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
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.
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”
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 refused to make it a
part of that record, the plaintiffs should have moved the
court to supplement the administrative record to include it.
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).
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 of the
merits. Instead, a court may only consider an adjudicative
fact subject to judicial ...