Citizens for Appropriate Rural v. Anthony Foxx , 815 F.3d 1068 ( 2016 )


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  •                                      In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 15-1554
    CITIZENS FOR APPROPRIATE RURAL
    ROADS, et al.,
    Plaintiffs-Appellants,
    v.
    ANTHONY FOXX, in his official capac-
    ity as Secretary of the United States
    Department of Transportation, et. al.,
    Defendants-Appellees.
    Appeal from the United States District Court for the
    Southern District District of Indiana, Indianapolis Division.
    No. 11-CV-1031— Sarah Evans Barker, Judge.
    ARGUED OCTOBER 27, 2015 — DECIDED MARCH 3, 2016
    Before KANNE, Circuit Judge, ROVNER, Circuit Judge, and
    BRUCE, District Judge.*
    *
    Of the Central District of Illinois, sitting by designation.
    2                                                   No. 15-1554
    BRUCE, District Judge. This case involves the extension of
    Interstate 69 (I-69) in Southern Indiana. The extension, which
    will connect Evansville and Indianapolis, has evolved over
    several decades and is scheduled to be completed in the
    coming years. Plaintiffs filed a complaint on August 1, 2011,
    raising several challenges to the extension. The district court
    dismissed part of Plaintiffs’ complaint when ruling on Defen-
    dants’ motion to dismiss, and granted summary judgment in
    favor of Defendants on all other counts. We affirm.
    I. BACKGROUND
    The first study of the I-69 extension between Evansville and
    Indianapolis was initiated in 1944. In the 1990s, the extension
    gained new life with the passage of two Acts of Congress: The
    Intermodal Surface Transportation Act of 1991, which desig-
    nated a potential new route from Indianapolis to Memphis,
    Tennessee, via Evansville as a “high priority corridor” for
    future development; and the Transportation Equality Act for
    the 21st Century, which designated the current extension as
    part of I-69.
    As the project progressed, the Federal Highway Adminis-
    tration (FHWA) reviewed the I-69 extension and divided the
    project into two schematic “tiers.” In Tier 1 of the project, the
    FHWA and the Indiana Department of Transportation
    (INDOT) reached several broad decisions about the goals of
    the project, its scope, and the general geographic corridor in
    which construction would take place. They selected “Alterna-
    tive 3C”–one of the 12 routes that had received consider-
    ation–as the path the new interstate would take between
    Evansville and Bloomington via a newly-constructed corridor
    No. 15-1554                                                               3
    and an upgraded portion of State Road 37 between
    Bloomington and Interstate 465 in Southwestern Indianapolis.
    Tier 2 was divided into six sections, each corresponding to a
    discrete geographic stretch of the highway project, with each
    portion to receive its own Tier 2 environmental analysis.
    FHWA and INDOT issued a Tier 1 “Record of Decision”
    (ROD), which finalized their action with respect to that stage
    of the project, on March 24, 2004.1 After the plans were
    finalized, planning and subsequent construction work on the
    six sections of Tier 2 continued steadily. At the time of oral
    argument in this case, counsel for Defendants-Appellants
    (hereinafter “Defendants”) stated that ninety-percent of the
    work on the extension had been completed.
    The portion of the I-69 project that is primarily at issue in
    this case is Tier 2, Section 4. Pursuant to the National Environ-
    mental Policy Act (NEPA) and other statutory prerequisites,
    FHWA and INDOT issued a Draft Environmental Impact
    Statement (DEIS) for Section 4 on July 23, 2010. A Final
    Environmental Impact Statement (FEIS) was issued on July 13,
    2011. And a ROD was issued on September 8, 2011.2
    The agencies selected the final route and construction plan
    for Section 4 after reviewing some 48 options available (within
    the constraints established by the Tier 1 ROD). In doing so, the
    agencies produced a record reflecting their consideration of the
    plan’s impact on historic sites, geological formations, and air
    1
    In 2007, the district court upheld the Tier 1 decision against claims from
    numerous plaintiffs including the Plaintiffs-Appellants in this case. See
    Hoosier Environmental Council v. United States Department of Transportation,
    
    2007 WL 4302642
    (S.D. Ind. December 10, 2007).
    2
    The original complaint in the underlying case was filed one month and
    seven days earlier, on August 1, 2011.
    4                                                             No. 15-1554
    quality, among other factors. Pursuant to its obligations under
    Section 7 of the Endangered Species Act, the United States Fish
    and Wildlife Service engaged in consultation and issued a
    Biological Opinion (BiOp) regarding the possible impact of the
    project’s tree-clearing on the endangered Indiana bat. Consul-
    tation was then reinitiated, and a revised BiOp, which ad-
    dressed the issue of “White-Nose Syndrome”–an affliction
    affecting a large number of bats in the target area–issued for
    both Tier 1 and Tier 2 .
    Plaintiffs-Appellants (hereinafter “Plaintiffs”) filed a
    lawsuit in the District Court for the Southern District of
    Indiana on August 1, 2011. On January 10, 2012, Plaintiffs filed
    a Motion for Leave to File an Amended Complaint. That
    motion was granted on March 27, 2012, and an amended
    complaint was filed instanter. Defendants filed a partial motion
    to dismiss on February 2, 2012. Plaintiffs did not contest the
    motion. The court granted the partial motion to dismiss, and
    dismissed counts 3, 4, 5, 6, and 8 in their entirety.3 After a
    lengthy period of inactivity by Plaintiffs, including several
    missed case management deadlines, the district court directed
    Plaintiffs to show cause as to why the entire case should not be
    dismissed for failure to prosecute. The case was not dismissed
    and both sides filed motions for summary judgment.4
    The district court ruled on the motions for summary
    judgment on March 31, 2014. The court granted Defendants’
    motion for summary judgment on all remaining counts of the
    Amended Complaint and denied Plaintiffs’ partial motion for
    3
    Plaintiffs did not contest the dismissal until over a year and a half after
    the order and only after the district court had granted summary judgment
    in favor of Defendants. This is just one example of Plaintiffs’ failure to
    timely prosecute the case at the district court level.
    4
    Plaintiffs’ motion was only a partial motion for summary judgment on
    counts 1, 2, 7, 11, 13, 17, and 18.
    No. 15-1554                                                              5
    summary judgment. Plaintiffs now appeal the district court’s
    Order granting Defendants’ motion to dismiss as it relates to
    Count 8 and the court’s March 31, 2014 Order and Judgment,
    arguing that the district court erred by: (1) granting summary
    judgment to Defendants on Counts 7, and 13 through 18; (2)
    dismissing in its entirety Count 8; (3) not granting relief based
    on Plaintiff’s allegations of fraud on the court and violations of
    the duty of candor; (4) ruling inappropriately on evidentiary
    issues; and (5) refusing to allow Plaintiffs additional discovery
    under Rule 56(d).
    II. ANALYSIS
    A. Summary Judgment on Counts 7, 9, and 13-18
    Summary judgment is appropriate “if the movant shows
    that there is no genuine dispute as to any material fact and the
    movant is entitled to judgment as a matter of law.” Fed. R. Civ.
    P. 56(a); see also Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322-23
    (1986). We review a district court’s grant of summary judg-
    ment de novo. Singer v. Raemisch, 
    593 F.3d 529
    , 533 (7th Cir.
    2010). In doing so, we must construe all facts and reasonable
    inferences in favor of the nonmoving party. 
    Id. However, our
    favor toward the nonmoving party does not extend to drawing
    inferences that are supported only by speculation or conjec-
    ture. 
    Id. Therefore, in
    order to succeed on appeal, Plaintiffs
    must do more than raise some metaphysical doubt as to the
    material facts; Plaintiffs must come forward with specific facts
    showing that there is a genuine issue for trial. See Matsushita
    Electric Industrial Co., Ltd., et al. v. Zenith Radio Corporation, et al.,
    
    475 U.S. 574
    , 586-87 (1986).
    Here, Plaintiffs claim that the district court erred in grant-
    ing summary judgment to Defendants on Counts 7, 95, and 13
    5
    Plaintiffs argued in the body of their brief that summary judgment on
    (continued...)
    6                                                             No. 15-1554
    through 18. Plaintiffs’ Partial Motion for Summary Judgment
    had requested that the district court grant summary judgment
    for Plaintiffs on Counts 1, 2, 7, 11, 13, 17, and 18.6 Plaintiffs did
    not advance any arguments regarding Counts 9, 14, 15, and 16.
    Defendants’ Motions for Summary Judgment requested that
    the court grant summary judgment for Defendants on all
    remaining counts. Plaintiffs responded to Defendants’ motions;
    however, they again advanced no arguments and made no
    response to Defendants’ arguments related to Counts 9, 14, 15,
    and 16.7
    The district court granted summary judgment in favor of
    Defendants on all counts. In so ruling, the court found that
    Counts 9 and 13 through 18 were unripe. The court also
    concluded that those counts were waived since Plaintiffs never
    responded to Defendants’ arguments regarding ripeness. As
    for Count 7, the court discussed the merits and concluded that
    summary judgment in favor of Defendants was appropriate.
    This court can affirm the district court’s grant of summary
    judgment for any reason supported by the record. Wagg v.
    5
    (...continued)
    Count 9 was inappropriate; however, Plaintiffs did not mention this count
    in their Issue Statement or in the Table of Contents. This is yet another
    example of the lack of diligence Plaintiffs’ counsel has exhibited in this
    matter. While environmental cases such as these can be complex, it is the
    duty of the party bringing a lawsuit or an appeal to ensure that the case is
    properly presented.
    6
    Plaintiffs’ motion originally stated it was also seeking summary judgment
    on Count 16. However, Plaintiffs provided no argument on that count and
    in the conclusion of their motion they did not request summary judgment
    on Count 16.
    7
    Plaintiffs did argue that they were entitled to additional discovery before
    responding to Count 9; however, they did not address the merits of that
    count.
    No. 15-1554                                                       7
    Village of Thorton, 
    604 F.3d 464
    , 467 (7th Cir. 2010). For the
    reasons that follow, we find that summary judgment in favor
    of Defendants was appropriate.
    Count 7
    Count 7 alleged that Defendants violated the NEPA by
    failing to prepare a SEIS for Tier 2, Section 4 to address: (1) the
    2009 vehicle fleet data; (2) the impact of the project on the
    endangered Indiana bat; and (3) the impact of the project on
    certain historic sites. The determination as to whether a SEIS is
    required is left to the discretion of the agency. State of Wisconsin
    v. Weinberger, 
    745 F.2d 412
    , 417 (7th Cir. 1984). We review an
    agency’s determination not to prepare a SEIS under Section
    706(2)(A) of the Administrative Procedure Act (APA). 
    Id. That section
    allows a court to set aside a final agency action only if
    it is arbitrary, capricious, an abuse of discretion, or otherwise
    not in accordance with the law. 5 U.S.C. § 706(2)(A). An
    agency’s decision regarding the preparation of a SEIS is
    granted considerable deference and we will only find that an
    agency acted arbitrarily or capriciously if new information
    provides a seriously different picture of the environmental
    landscape such that another hard look is necessary. 
    Weinberger, 745 F.2d at 418
    .
    Plaintiffs first claim that the issuance of the 2009 vehicle
    fleet data required a SEIS and Defendants’ decision to use the
    2004 data was arbitrary and capricious. Pursuant to the Clean
    Air Act, Indiana agencies performed a “fleet mix” study in
    2004 and a new study in 2009 to determine air quality stan-
    dards for Greene County, Indiana because it was considered a
    “maintenance area.” The 2009 study showed an older mix of
    cars than had been expected. This meant that pollution levels
    per vehicle were projected to be higher than that determined
    in the 2004 study. Defendants, acting in consultation, deter-
    mined that the 2009 data should not be used until it had been
    quality assured. Therefore, Defendants used the 2004 data
    8                                                            No. 15-1554
    when formulating the Tier 2, Section 4 EIS and ROD since the
    quality assurance analysis on the 2009 data was not completed
    until October 2011.8
    Plaintiffs attempt to support their argument that Defen-
    dants’ decision was arbitrary and capricious by pointing to
    evidence from the record that shows Defendants were con-
    cerned with the 2009 data. Emails in the record do demonstrate
    that Defendants were aware the 2009 data might jeopardize
    Greene County’s compliance with the CAA. One email even
    urged local authorities to complete their new transportation
    plans before the 2009 data was finalized in order to avoid the
    problematic nature of the new study. However, even though
    the evidence shows that Defendants were concerned with the
    2009 data, Plaintiffs have presented no evidence to establish
    that the 2009 data would have resulted in non-compliance.
    Further, evidence presented by Defendants shows that Greene
    County has since been updated by the Environmental Protec-
    tion Agency to an “attainment area.” This evidence demon-
    strates that the air quality in Greene County improved and
    would rebut any evidence by Plaintiffs that there was a
    significant negative change in air quality that would require a
    SEIS.
    Further, the record shows that Defendants knew about the
    2009 data and decided to use the 2004 data after taking a hard
    look at the information. Their decision was made following a
    conclusion that the 2009 data may contain “systemic deficien-
    cies” and should not be used until it was quality assured. This
    was not an unreasonable decision, and it was one that was
    supported by the law since the 2009 data was not official at the
    time the analysis began. See 40 C.F.R. § 93.110(a) (the confor-
    mity determination “must be based upon the most recent
    planning assumptions in force at the time the conformity
    8
    The ROD for Section 4 was issued on September 8, 2011.
    No. 15-1554                                                      9
    analysis begins”). Therefore, we do not find any evidence in
    the record to support Plaintiff’ contention that Defendants
    acted arbitrarily or capriciously. See 
    Weinberger, 745 F.2d at 417
    (an agency’s decision will be upheld “under the arbitrary and
    capricious standard if the decision was based on a consider-
    ation of relevant factors ... and made on a rational basis”).
    Second, Plaintiffs alleged that a SEIS was required to deal
    with the impact of the project on the endangered Indiana bat.
    Plaintiffs claim that a 2013 article in a scholarly journal, which
    detailed the impact of White-Nose Syndrome on the Indiana
    bat, is proof that a substantial change had occurred and a SEIS
    was necessary. However, the article does not bear directly on
    the question at hand and only discusses the risks of the disease
    in general. We do not find that the article itself constitutes a
    substantial change requiring a SEIS. Plaintiffs also claim that
    Defendants and their contractors engaged in tree-clearing that
    violated the proposed action and substantially affected the
    Indiana bat. However, Plaintiffs have only provided evidence
    that one protected tree was felled by Defendants. Importantly,
    the record shows that a specialist investigated the fallen tree
    and determined that it had not been used as a “maternity tree”
    for the Indiana bat. Therefore, the impact of the one fallen tree
    was minimal or non-existent. Plaintiffs’ evidence regarding
    White-Nose Syndrom is not sufficient and they have entirely
    failed to present any evidence that the removal of one tree
    impacted the Indiana bat in any way. Therefore, without
    evidence of substantial changes related to the Indiana bat, we
    cannot conclude that a SEIS was necessary.
    Finally, Plaintiffs argued in their amended complaint that
    a SEIS was required to protect certain historic sites. However,
    Plaintiffs did not include this argument on appeal. Plaintiffs
    also failed to provide sufficient evidence in the district court to
    support their allegations with respect to significant changes
    made to historical sites located in Tier 2, Section 4. Without any
    10                                                 No. 15-1554
    such evidence, we cannot conclude that Defendants were
    required to produce a SEIS based on historical sites.
    We find that Plaintiffs have not presented sufficient
    evidence to establish a SEIS was required for any reason.
    Therefore, Defendants were entitled to summary judgment on
    Count 7 of Plaintiffs’ amended complaint.
    Count 13
    Count 13 alleged that Defendants violated the CAA and the
    APA when they decided to use the 2004 vehicle fleet data and
    not the 2009 vehicle fleet data when preparing their CAA
    conformity determination for Greene County. We disagree for
    two reasons.
    First, the law did not require Defendants to use to the
    2009 data. At the time the conformity analysis began, and even
    at the time the ROD for Tier 2, Section 4 issued, the 2009 data
    was not finalized. Pursuant to 40 C.F.R. § 93.100(a), an agency
    must base its conformity determination “upon the most recent
    planning assumptions in force at the time the conformity
    analysis begins.” Because the 2009 data was not finalized until
    October 2011, Defendants were under no lawful obligation to
    use it.
    Second, the record clearly demonstrates Defendants’
    knowledge of the 2009 data and their decision not to use it.
    That decision was based on a concern that the data contained
    “systemic deficiencies.” The record clearly shows that Defen-
    dants considered the relevant factors and made a rational
    decision. See 
    Weinberger, 745 F.2d at 417
    . That decision is
    granted great deference. See Baltimore Gas & Electric Co. v.
    Natural Resources Defense Council, Inc., 
    462 U.S. 87
    , 103 (1983)
    (“[w]hen examining this kind of scientific determination, as
    opposed to simple findings of fact, a reviewing court must
    generally be at its most deferential”). Therefore, we conclude
    that the record contains substantial evidence, un-rebutted by
    No. 15-1554                                                      11
    Plaintiffs, that Defendants did not violate the CAA or APA
    when they chose to use the 2004 data. As such, summary
    judgment for Defendants on Count 13 was appropriate.
    Counts 17 and 18
    Counts 17 and 18 of the amended complaint alleged that
    Defendants concealed certain information in violation of the
    NEPA. While Plaintiffs make numerous allegations against
    Defendants, they have failed to provide sufficient evidence to
    back up their claims. We have said that summary judgment is
    the “put up or shut up” moment in a lawsuit. Siegel v. Shell Oil
    Co., 
    612 F.3d 932
    , 937 (7th Cir. 2010). Here, Plaintiffs have failed
    to produce sufficient evidence to support their allegation that
    Defendants concealed information in violation of the NEPA.
    Further, Plaintiffs have not provided sufficient evidence to
    support their position that Defendants should have accepted
    an alternative route. The record clearly shows that Defendants
    considered all relevant factors when deciding upon a route and
    made a rational decision. This is all that was required. See
    
    Weinberger, 745 F.2d at 417
    . Without sufficient evidence, and
    with a record showing that defendants were forthcoming with
    information and made rational decisions, we must conclude
    that summary judgment in favor of Defendants on Counts 17
    and 18 is appropriate.
    Counts 9, 14, 15, and 16
    As noted above, Plaintiffs failed to offer any response to
    Defendants’ request for summary judgment on counts 9, 14, 15,
    and 16. Rule 56-1 of the Local Rules of the Southern District of
    Indiana requires a party opposing summary judgment to
    include a section labeled “Statement of Material Facts in
    Dispute” that identifies the potentially determinative facts and
    factual disputes that the party contends demonstrates a
    disputed fact precluding summary judgment. The rules state
    that the district court will “assume that the facts claimed and
    12                                                    No. 15-1554
    supported by admissible evidence by the movant are admitted
    without controversy except to the extent that the non-movant
    specifically controverts the facts in that party’s ‘Statement of
    Material Facts in Dispute.’” Local Rules of the Southern District
    of Indiana 56-1(f)(1)(A).
    Here, Plaintiffs’ Response fell far short of the requirements
    of Rule 56.1. Although their Response included a section
    entitled, “Statement of Facts,” Plaintiffs did not make any
    effort to identify with specificity which factual issues were
    disputed. Instead, the statement read, in its entirety:
    Plaintiffs hereby incorporate by reference the
    Statement of Facts included in their Motion for
    Partial Summary Judgment on Counts 1, 2, 7, 11,
    13, 17, and 18.
    By only incorporating the facts relevant to Counts 1, 2, 7, 11,
    13, 17, and 18, Plaintiffs failed to respond to or provide any
    facts specifically related to Counts 9, 14, 15, and 16. Further,
    Plaintiffs’ Response did not even attempt to address the facts
    or arguments raised by Defendants that supported their
    request for summary judgment on Counts 9, 14, 15, and 16.
    By failing to respond to the facts, the local rules make it
    clear that Defendants’ facts are to be taken as they are repre-
    sented in their motions. See Waldridge v. American Hoechst
    Corp., 
    24 F.3d 918
    , 922-23 (7th Cir. 1994). Therefore, because
    Defendants’ facts established that summary judgment in their
    favor was appropriate for Counts 9, 14, 15, and 16, Defendants
    were entitled to summary judgment.
    Further, by failing to respond in any way to any of the
    arguments advanced by Defendants regarding counts 9, 14, 15,
    and 16, Plaintiffs have waived their claims. See Bonte v. U.S.
    Bank, N.A., 
    624 F.3d 461
    , 466 (7th Cir. 2010) (“Failure to respond
    to an argument ... results in waiver”); United States v. Farris, 
    532 F.3d 615
    , 619 (7th Cir. 2008) (“Farris failed to respond to the
    No. 15-1554                                                     13
    Government’s argument in a Reply Brief, and accordingly, we
    find that Farris waived his [claim]”); Goodpaster v. City of
    Indianapolis, 
    736 F.3d 1060
    , 1075 (7th Cir. 2013) (“Because
    [plaintiffs] did not provide the district court with any basis to
    decide their claims, and did not respond to the [defendant’s]
    arguments, these claims are waived”).
    Based on the above reasons, summary judgment in favor of
    Defendants on Counts 9, 14, 15, and 16 was appropriate.
    B. Motion to Dismiss, Count 8
    Plaintiffs appeal the district court’s order on Defendants’
    motion to dismiss which resulted in the dismissal of Count 8 in
    its entirety. Defendants’ motion to dismiss only requested that
    the portions of Count 8 dealing with Tier 2, Section 3 be
    dismissed. However, when ruling on the motion, the district
    court dismissed Count 8 in its entirety, including the sections
    that dealt with Tier 2, Section 4. The district court’s only stated
    reason for dismissal was that the counts related to Tier 2,
    Section 3 were untimely. This reasoning does not extend to the
    portions of Count 8 that dealt with Tier 2, Section 4. Therefore,
    because Defendants only requested a portion of Count 8 be
    dismissed and because the district court provided no reasons
    for dismissal of Count 8 as it related to Tier 2, Section 4, we
    conclude that the dismissal of Count 8, in its entirety, was
    error.
    However, after a review of the record, we have determined
    that the error was harmless. An error is harmless if it does not
    affect a party’s substantial rights. Fed. R. Civ. P. 61. Here, the
    district court noted in its order denying reconsideration that
    “[h]ad Count 8 not been dismissed by the Court in September
    2012, then, we would have granted Defendants’ motion for
    summary judgment as to Count 8 in March 2014 on grounds of
    unripeness.” Because Defendants challenged all remaining Tier
    2, Section 4 counts on ripeness grounds, there is no question
    14                                                    No. 15-1554
    they would have challenged the remaining parts of Count 8 on
    that ground.
    A claim is not ripe for adjudication if it rests upon contin-
    gent future events that may not occur as anticipated, or that
    may not occur at all. Texas v. U.S., 
    523 U.S. 296
    (1998). In the
    context of judicial review under the APA, a challenge to
    agency conduct is ripe only if it is filed after the final agency
    action. 5 U.S.C. § 704. The issuance of a ROD generally consti-
    tutes a final agency action. See Jersey Heights Neighborhood
    Association v. Glendening, 
    174 F.3d 180
    , 186 (4th Cir. 1999); Sierra
    Club v. U.S. Department of Energy, 
    825 F. Supp. 2d 142
    , 156-57
    (D.D.C. 2011).
    Here, Count 8 was originally filed on August 1, 2011. The
    ROD for Tier 2, Section 4 was not issued until one month and
    seven days later on September 8, 2011. Therefore, because
    Count 8 was filed before the ROD issued, it predated the final
    agency action and is therefore unripe. This is true even though
    Plaintiffs amended their complaint after the issuance of the
    ROD. Federal Rule of Civil Procedure 15(c)(1)(B) notes that an
    amendment to a complaint relates back to the date of the
    original pleading when “the amendment asserts a claim or
    defense that arose out of the conduct, transaction, or occur-
    rence set out–or attempted to be set out–in the original plead-
    ing.” Because Count 8 of the amended complaint presented the
    same claim as Count 8 in the original complaint, Count 8
    relates back and the amended complaint does not cure the
    ripeness issue.
    We also do not agree with Plaintiffs that their challenge to
    Tier 2, Section 4 in Count 8 was ripe prior to the issuance of the
    ROD. Plaintiffs allege that allegations of bad faith with respect
    to an environment impact statement are ripe once the bad faith
    occurs. To support their position, Plaintiffs point to a few
    sentences of dicta in Ohio Forestry Association v. Sierra Club, 
    523 U.S. 726
    (1998). Those sentences seem to suggest that it may be
    No. 15-1554                                                     15
    possible to bring a claim related to an environmental impact
    statement at any point if the allegation is that the proper
    procedure was not followed. 
    Id. at 737.
    Importantly, the
    statement made by the Supreme Court was not relevant to the
    case before it. Further, courts have been wary about the
    statement and the Supreme Court’s intention. See New York v.
    U.S. Army Corps of Engineers, 
    896 F. Supp. 2d 180
    , 196 (E.D.NY
    2012)(“the court does not believe the Supreme Court would
    intend to attempt to abrogate its prudential ripeness case law
    as to NEPA claims in a few sentences of dicta”). This court
    agrees with the district court in New York v. U.S. Army Corps of
    Engineers and concludes that the few sentences in Ohio Forestry
    Association were not meant to overturn the clear mandate of 5
    U.S.C. § 704 which states that a challenge to agency conduct is
    ripe only if it is filed after the final agency action.
    Because Count 8 was filed before the ROD issued as to Tier
    2, Section 4, the parts of Count 8 which deal with that section
    were unripe. Therefore, had that count not been dismissed in
    its entirety, the remainder would have been dismissed at the
    summary judgment stage. As such, the district court’s error
    was harmless and Plaintiffs cannot obtain relief on Count 8.
    C. Fraud on the Court
    Plaintiffs claim that the district court erred by not granting
    relief based on their allegations of fraud on the court and a
    violation of the duty of candor. Fraud on the court occurs only
    in the most extraordinary and egregious circumstances and
    relates to conduct that might be thought to corrupt the judicial
    process itself, such as where a party bribes a judge or inserts
    bogus documents into the record. Oxxford Clothes XX, Inc. v.
    Expeditors Intern. Of Washington, Inc., 
    127 F.3d 574
    , 578 (7th Cir.
    1997). A party alleging fraud on the court must support their
    allegations with a meaningful evidentiary showing. National
    Archives and Records Administration v. Favish, 
    541 U.S. 157
    , 175
    (2004).
    16                                                    No. 15-1554
    Here, Plaintiffs claim that Defendants were guilty of fraud
    on the court and a violation of the duty of candor by hiding
    evidence related to Defendants’ decision to use the 2004 vehicle
    fleet data. However, Plaintiffs have failed to support these
    allegations with any admissible evidence. The only evidence
    Plaintiffs have produced is an affidavit from their own attorney
    which states that an anonymous employee of Defendants
    informed Plaintiffs’ attorney that a supervisor employed by
    Defendants told the first employee that the supervisor had not
    used the 2009 vehicle fleet data in a direct attempt to get
    around environmental regulations. However, as that jumbled
    sentence illustrates, Plaintiffs’ attorney’s affidavit is hearsay
    within hearsay and is not admissible. See Haywood v. Lucent
    Tech. Inc., 
    323 F.3d 524
    , 533 (7th Cir. 2003) (holding that, while
    statements by supervisor might constitute non-hearsay
    admissions on behalf of defendant, plaintiff’s own version of
    the statements which were based on an employee’s version of
    the statements, is not admissible). Further, evidence related to
    Defendants’ desire not to use the 2009 data was contained
    within the administrative record. This included an email which
    urged local authorities to complete their transportation plans
    before the 2009 data was finalized. Therefore, any argument
    that Defendants were attempting to conceal evidence related
    to their decision not to use 2009 data is unconvincing. Simply
    put, Plaintiffs have produced no evidence that would warrant
    a belief by a reasonable person that Defendants engaged in
    fraud or inappropriate behavior. Therefore, the district court
    did not err in refusing to grant Plaintiffs relief based upon their
    allegations of fraud and a violation of the duty of candor.
    Plaintiffs have also argued that the district court erred by
    not holding an evidentiary hearing on their allegation of fraud
    and a violation of the duty of candor. As noted above, Plaintiffs
    offered no admissible evidence to support their position.
    Instead, Plaintiffs’ entire argument was based upon inadmissi-
    No. 15-1554                                                               17
    ble hearsay and speculation. Without any suggestion that an
    evidentiary hearing would have produced evidence to support
    Plaintiffs’ position, there is no reason to find that the district
    court erred in any way when it decided an evidentiary hearing
    was not necessary.
    D. Evidentiary Issues
    Plaintiffs argue that the district court erred when ruling on
    a number of evidentiary issues including: (1) concluding that
    Plaintiffs’ counsel’s affidavit was inadmissible; (2) quashing
    subpoenas; and (3) failing to hold evidentiary hearings. We
    will address each issue in turn.
    First, this court has already concluded that Plaintiffs’
    counsel’s affidavit was hearsay. As noted above, the affidavit
    stated that an anonymous employee of Defendant had in-
    formed Plaintiffs’ counsel that another anonymous employee
    had made a statement related to Defendants’ decision not to
    use the 2009 vehicle fleet data. Counsel’s affidavit is clearly
    hearsay within hearsay and does not fit into any exception to
    the hearsay rule. See Fed. R. Evid. 801, 802; 
    Haywood, 323 F.3d at 533
    . Therefore, the district court did not err when it refused
    to consider Plaintiffs’ counsel’s affidavit.
    Second, we do not find that the district court abused its
    discretion when quashing subpoenas. See U.S. v. Ashman, 
    979 F.2d 469
    , 495 (7th Cir. 1992) (we review a district court’s
    decision to quash subpoenas for an abuse of discretion). In an
    order dated February 2, 2012, the district court quashed nine
    subpoenas.9 After our review of the record, we conclude that
    9
    On appeal, Plaintiffs have not specified which of the nine subpoenas they
    believe were erroneously quashed. Instead, they simply state that the
    district court “erred in quashing Plaintiffs’ subpoenas that were intended
    to compel the testimony of these key adverse witnesses.” Nevertheless, we
    find that the district court did not abuse its discretion in quashing any of
    (continued...)
    18                                                  No. 15-1554
    the district court properly applied the factors established in
    CSC Holdings, Inc. v. Redisi, 
    309 F.3d 988
    , 993 (7th Cir. 2002),
    when it determined that the subpoenas imposed an undue
    burden. The court’s determination was made after concluding
    that Plaintiffs: (1) had months to conduct discovery and seek
    the testimony and documents it sought through the subpoenas;
    (2) failed to counter the affidavits provided by Defendants
    which claimed that it would be nearly impossible to search for
    and produce the requested documents in the time provided;
    and (3) failed to establish that the requested evidence was
    material. All of these findings were supported by the record.
    Therefore, we do not find that the district court abused its
    discretion when it quashed Plaintiffs’ subpoenas.
    Finally, Plaintiffs have offered no precedent and virtually
    no argument to support their position that they were entitled
    to an evidentiary hearing on any of the above issues. The
    following is Plaintiffs’ entire argument on appeal regarding the
    court’s failure to hold an evidentiary hearing:
    The District Court was also in error in refusing
    to hold an evidentiary hearing in which these
    witnesses could testify.
    The statement is speculative and conclusory. Because Plaintiffs
    are not entitled to evidentiary hearings in APA cases (see
    Cronin v. U.S. Department of Agriculture, 
    919 F.2d 439
    , 443-444
    (7th Cir. 1990)) and because Plaintiffs have failed to offer any
    argument to support their position, we must conclude that the
    district court was well within its discretion when it refused to
    hold an evidentiary hearing on any of the above issues.
    9
    (...continued)
    the subpoenas.
    No. 15-1554                                                           19
    E. Additional Discovery
    Plaintiffs claim that the district court erred when it refused to
    allow additional discovery pursuant to Federal Rule of Civil
    Procedure 56(d). We review a district court’s denial of discov-
    ery for an abuse of discretion. Little Co. of Mary Hospital v.
    Sebelius, 
    587 F.3d 849
    , 856 (7th Cir. 2009). Generally, discovery
    is not appropriate for claims brought under the APA since
    review of an agency’s decision is confined to the administrative
    record. 
    Id. An exception
    exists if a plaintiff seeking discovery
    can make a significant showing that it will find material in the
    agency’s possession indicative of bad faith or an incomplete
    record. Air Transport Association of America, Inc. v. National
    Mediation Board, 
    663 F.3d 476
    , 487-88 (D.C. Cir. 2011). In
    addition, when a party is requesting discovery pursuant to
    Rule 56(d), that party must not only meet the above require-
    ments for APA cases, but must also show that additional facts
    would be necessary to avoid summary judgment and that they
    had been diligent in pursuing discovery. Convertino v. U.S.
    Dep’t of Justice, 
    684 F.3d 93
    , 99 (D.C. Cir. 2012).
    The district court based its decision primarily on a finding
    that Plaintiffs did not demonstrate a need for additional
    discovery and that they were not diligent in their pursuit of
    discovery.10 After a thorough review of the record, we do not
    believe these findings were an abuse of discretion. First, the
    additional discovery requested by Plaintiffs related to an
    alleged whistleblower’s testimony which would have only
    supplemented evidence that already existed in the administra-
    tive record. Therefore, Plaintiffs failed to show a need for the
    evidence. More importantly, Plaintiffs actions in the district
    court showed that they were anything but diligent in their
    10
    The court also concluded, very briefly, that Plaintiffs had not made a
    strong showing that Defendants’ misconduct entitled them to seek review
    beyond the administrative record.
    20                                                   No. 15-1554
    pursuit of discovery. The district court set two deadlines in
    July 2012 to allow Plaintiffs to demonstrate why the adminis-
    trative record was insufficient. Plaintiffs ignored both dead-
    lines. As the case progressed, the dilatory nature of Plaintiffs’
    counsel’s conduct lead the district court to order Plaintiffs to
    show cause as to why the entire suit should not be dismissed
    for failure to prosecute. The court noted that Plaintiffs behavior
    constituted “frustrating and persistent ... tardiness.” These are
    but a few examples from the record demonstrating Plaintiffs’
    failure to properly handle the case at the district court level.
    These examples demonstrate that Plaintiff was not diligent in
    pursuing discovery.
    A party who fails to comply with deadlines related to
    discovery or otherwise forestalls prosecution of their own case
    is not entitled to seek additional discovery when the opposing
    side moves for summary judgment. See 
    Convertino, 684 F.3d at 99
    . The record shows that Plaintiffs had every opportunity to
    seek discovery prior to the summary judgment stage. Plaintiffs
    failure to comply with court deadlines and seek discovery
    prior to summary judgment was their own choice and they
    must now live with the consequences. Based upon a thorough
    review of the record, it was not an abuse of discretion for the
    district court to conclude that Plaintiffs were not entitled to
    additional discovery.
    III. CONCLUSION
    For all of the reasons stated above, the district court’s
    orders granting Defendants’ motions to dismiss and sum-
    mary judgment are AFFIRMED.
    

Document Info

Docket Number: 15-1554

Citation Numbers: 815 F.3d 1068

Judges: Bruce

Filed Date: 3/3/2016

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (20)

the-jersey-heights-neighborhood-association-a-non-profit-membership , 174 F.3d 180 ( 1999 )

Little Company of Mary Hospital v. Sebelius , 587 F.3d 849 ( 2009 )

United States v. Farris , 532 F.3d 615 ( 2008 )

Csc Holdings, Inc. v. Frank P. Redisi, Sr., and Frank P. ... , 309 F.3d 988 ( 2002 )

State of Wisconsin, and County of Marquette, Michigan, ... , 745 F.2d 412 ( 1984 )

Bonte v. U.S. Bank, N.A. , 624 F.3d 461 ( 2010 )

Air Transport Ass'n of America, Inc. v. National Mediation ... , 663 F.3d 476 ( 2011 )

William Cronin v. United States Department of Agriculture , 919 F.2d 439 ( 1990 )

Oxxford Clothes Xx, Inc. v. Expeditors International of ... , 127 F.3d 574 ( 1997 )

Cherry Haywood v. Lucent Technologies, Incorporated , 323 F.3d 524 ( 2003 )

Sandra L. Waldridge v. American Hoechst Corp. , 24 F.3d 918 ( 1994 )

Singer v. Raemisch , 593 F.3d 529 ( 2010 )

Wragg v. Village of Thornton , 604 F.3d 464 ( 2010 )

Siegel v. Shell Oil Co. , 612 F.3d 932 ( 2010 )

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio ... , 106 S. Ct. 1348 ( 1986 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

Texas v. United States , 118 S. Ct. 1257 ( 1998 )

Ohio Forestry Assn., Inc. v. Sierra Club , 118 S. Ct. 1665 ( 1998 )

National Archives & Records Administration v. Favish , 124 S. Ct. 1570 ( 2004 )

Baltimore Gas & Electric Co. v. Natural Resources Defense ... , 103 S. Ct. 2246 ( 1983 )

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