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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2003 Decided June 27, 2003
No. 02-5260
COALITION FOR UNDERGROUND EXPANSION, ET AL.,
APPELLANTS
v.
NORMAN Y. MINETA,
SECRETARY OF THE UNITED STATES
DEPARTMENT OF TRANSPORTATION,
IN HIS OFFICIAL CAPACITY AND NURIA I. FERNANDEZ,
ACTING ADMINISTRATOR OF THE FEDERAL TRANSIT ADMINISTRATION,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 99cv02337)
David J. Newburger argued the cause for the appellants.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
John A. Bryson, Attorney, United States Department of
Justice, argued the cause for the appellees. Trudy B. Levy,
Associate Chief Counsel, Federal Transit Administration, was
on brief.
Before: SENTELLE, HENDERSON and GARLAND, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The Coalition
for Underground Expansion and its eight individual directors
(collectively identified as Coalition)1 appeal the decision of the
district court dismissing its action against the Secretary of
the United States Department of Transportation and the
Administrator of the Federal Transit Administration (FTA),
an agency within the Department of Transportation. The
complaint sought declaratory and injunctive relief to compel
the FTA to conduct an environmental review of the proposed
addition of a third line segment—the Clayton–Shrewsbury
Extension (Extension)—to the MetroLink rail transit system,
which serves the St. Louis metropolitan area. The complaint
contended the FTA’s failure to conduct such review violated
the National Environmental Policy Act (NEPA), 42 U.S.C.
§§ 4321–47,2 the National Historic Preservation Act (NHPA),
16 U.S.C. §§ 470 to 470x–6,3 and section 4(f) of the Depart-
1 The Coalition is a Missouri non-profit organization dedicated
to ‘‘developing and protecting civic resources in the St. Louis
metropolitan area.’’ Appellants’ Br. (Certificate as to Parties,
Rulings, and Related Cases).
2 Section 102(2)(C) of NEPA requires that federal agencies
include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affect-
ing the quality of the human environment, a detailed statement
by the responsible official on
(I) the environmental impact of the proposed actionTTTT
42 U.S.C. § 4332(2)(C)(I).
3 Section 106 of the NHPA provides in part:
The head of any Federal agency having direct or indirect
jurisdiction over a proposed Federal or federally assisted un-
3
ment of Transportation Act (DOTA), 49 U.S.C. § 303(c).4
The district court dismissed the complaint on two alternate
grounds: (1) the Coalition lacked standing because ‘‘the myri-
ad injuries alleged by plaintiffs are in no respect caused by
any action or inaction of the federal defendants who remain in
the case and could not be redressed by any conceivable ruling
in plaintiffs’ favor’’ and (2) the complaint failed to state a
claim because ‘‘even with discovery plaintiffs would be able to
prove no state of facts from which it could be found that the
‘C[layton]-S[hrewsbury] Extension’ is a ‘major federal action’
under NEPA, 42 U.S.C. § 4332(2)(C), or is otherwise subject
to preconditions required by federal law.’’ Coalition for
Underground Expansion v. Slater, C.A. No. 99–2337, 1
(D.D.C. filed July 17, 2002) (citations omitted). We affirm the
dertaking in any State and the head of any Federal department
or independent agency having authority to license any under-
taking shall, prior to the approval of the expenditure of any
Federal funds on the undertaking or prior to the issuance of
any license, as the case may be, take into account the effect of
the undertaking on any district, site, building, structure, or
object that is included in or eligible for inclusion in the National
Register.
16 U.S.C. § 470f.
4 Section 4(f) of DOTA provides in part:
(c) The Secretary may approve a transportation program or
project (other than any project for a park road or parkway
under section 204 of title 23) requiring the use of publicly
owned land of a public park, recreation area, or wildlife and
waterfowl refuge of national, State, or local significance, or land
of an historic site of national, State, or local significance (as
determined by the Federal, State, or local officials having
jurisdiction over the park, area, refuge, or site) only if—
(1) there is no prudent and feasible alternative to using that
land; and
(2) the program or project includes all possible planning to
minimize harm to the park, recreation area, wildlife and water-
fowl refuge, or historic site resulting from the use.
49 U.S.C. § 303(c).
4
dismissal on the ground that the Coalition lacked standing
because its claimed injuries were not caused by any final
federal agency action.5
Section 10(a) provides: ‘‘A person suffering legal wrong
because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant statute, is
entitled to judicial review thereof.’’ 5 U.S.C. § 702. The
APA generally defines ‘‘agency’’ to mean ‘‘each authority of
the Government of the United States, whether or not it is
within or subject to review by another agency,’’ id.
§ 701(b)(1), and limits review to ‘‘final agency action,’’ id.
§ 704. To establish standing under section 10(a), ‘‘the person
claiming a right to sue must identify some ‘agency action’ that
affects him in the specified fashion; it is judicial review
‘therof’ to which he is entitled.’’ Lujan v. Nat’l Wildlife Fed.,
497 U.S. 871, 882 (1990). Here, the Coalition ‘‘fail[ed] to
identify any particular ‘agency action’ that was the source of
[its] injuries.’’ Id. at 899. In fact, it has identified no federal
agency action at all.
The complaint alleges the Clayton–Shrewsbury Extension
has been planned and will be constructed by two local govern-
mental bodies, the East–West Gateway Coordinating Council,
which is the designated St. Louis metropolitan planning orga-
nization, and the Bi–State Development Agency, which oper-
ates MetroLink. See Complaint ¶¶ 37, 38, 49, 51, 81. To date
there has been no involvement with the Clayton–Shrewsbury
Extension by any federal agency. Nonetheless, the Coalition
argues that the FTA’s past and current funding of other
portions of the MetroLink system and its future funding of
the Clayton–Shrewsbury Extension make the Clayton–
Shrewsbury Extension a federal project.6 We disagree.
5 Because we affirm on lack of standing, we do not address the
district court’s alternative ground for dismissal.
6 At oral argument, the Coalition asserted in addition that final
agency action lay in the FTA’s decision not to conduct an environ-
5
To support federal status, the Coalition relies on the allega-
tions in the complaint that the MetroLink system cannot
operate without federal funding, that the FTA is in fact
financing construction of a separate MetroLink extension and
that the FTA will provide funding to (1) maintain trains that
will run on the Clayton–Shrewsbury Extension (2) help make
up the transit system’s annual operating budget deficit caused
by the Extension, (3) construct facilities to repair and main-
tain trains that will run on the Extension, (4) purchase new
trains for the Extension and (5) construct exit ramps for
park-and-ride near stations that will serve the Extension.
Appellant’s Br. at 21–22; see also Complaint ¶¶ 45, 33–34, 46.
The Complaint further alleges that the federal government is
‘‘providing federal subsidies for the rest of MetroLink’’ and
that, when the Extension is ‘‘completed,’’ the East–West
Gateway Coordinating Council will have the ‘‘opportunity’’ to
use the Extension to obtain matching federal grants to extend
the transit system. Complaint ¶¶ 49, 48. All of this may be
true but it does not make construction of the Clayton–
Shrewsbury Extension at this time a federal project constitut-
ing federal agency action.
In Macht v. Skinner, 916 F.2d 13 (D.C. Cir. 1990),7 this
court held that a non-federally funded light rail transit line
mental review but it is well established that the ‘‘refusal to prepare
an [Environmental Impact Statement] is not itself a final agency
action for purposes of APA review.’’ Public Citizen v. Office of U.S.
Trade Reps., 970 F.2d 916, 918 (D.C. Cir. 1992) (citing Found. on
Econ. Trends v. Lyng, 943 F.2d 79, 85 (D.C. Cir. 1991)).
7 Although Macht addressed specifically what constitutes a
‘‘major federal action’’ under NEPA, its principles apply equally to
defining federal action subject to review under the APA. In fact,
this court has expressly concluded that the requisite final agency
action under section 10(a) of the APA is the ‘‘ ‘major Federal
action[ ] significantly affecting the quality of the human environ-
ment,’ within the meaning of 42 U.S.C. § 4332(2)(C).’’ Found. on
Econ. Trends v. Lyng, 943 F.2d 79, 85 (D.C. Cir. 1991). Similar
federal involvement is required under section 4(f) of DOTA, which
6
under construction in Baltimore was not ‘‘federalized’’ simply
because the federal government had financed studies of pro-
posed extensions to the line or because the local transit
authority hoped to obtain federal funding to construct the
extensions down the line. The court reasoned that ‘‘[a]t
th[at] point, the federal involvement [was] not the firm com-
mitment that could transform the so far entirely state-funded
Light Rail Project into major federal action affecting the
environment within the meaning of NEPA.’’ 916 F.2d at 17
(citing Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1243
(D.C. Cir. 1980)). The same holds true here. The declara-
tion submitted by the FTA Regional Director below avers
that the FTA received no request or application to fund the
Clayton–Shrewsbury Extension, Declaration of FTA Regional
Director Mokhtee Ahmad in Support of the Federal Defen-
dants’ motion to Dismiss ¶ 5, and the Coalition does not
dispute this statement. That the parties anticipate, even
intend, future federal funding does not ensure it will come
about. See Macht v. Skinner, 916 F.2d at 17 (‘‘ ‘[T]here is a
wide gulf between what a state may want and what the
federal government is willing to provide.’ ’’) (quoting Macht v.
Skinner, C.A. No. 89–1161, at 7–8 (D.D.C. Dec. 21, 1989)).
To seek review under the APA the Coalition must allege the
FTA is ‘‘ ‘irretrievably committed’ ’’ to providing funds for the
Clayton–Shrewsbury Extension, Macht, 816 F.2d at 17 (quot-
‘‘applies only to federally-funded transportation projects,’’ Macht,
916 F.2d at 15 n.3 (citing Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 405 (1971)), and under the NHPA, which
‘‘imposes obligations only when a project is undertaken either by a
federal agency or through the auspices of agency funding or ap-
proval,’’ Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C. Cir. 1989).
Cf. Macht, 916 F.2d at 15–16 n.3 (‘‘Because the expenditure of
federal funds for preliminary planning and environmental impact
statements does not federalize the Light Rail Project under NEPA,
it similarly does not federalize the Project under § 4(f).’’) (citing
Md. Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039, 1043
(4th Cir. 1986)).
7
ing Macht v. Skinner, No. 89–1161, at 7–8). This it cannot
do.
The Coalition argues that the MetroLink ‘‘system’’ has
become ‘‘irrevocably federalized’’ because of other funding it
has received and continues to receive from the federal gov-
ernment. That other parts of the system are federally fund-
ed, however, does not make the discrete Clayton–Shrewsbury
Extension federally funded. It is the Extension that the
Coalition alleges will affect the environment so as to trigger
the statutory environmental review requirement. Cf. Macht,
916 F.2d at 16–17 (federal funding of preliminary studies for
proposed extensions does not federalize non-federally funded
light rail system construction).8
Finally, the Coalition asserts the district court erred in
considering matters outside the pleadings on a motion to
dismiss, without affording the Coalition opportunity for dis-
covery. Although ‘‘the District Court may in appropriate
cases dispose of a motion to dismiss for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1) on the complaint
standing alone,’’ ‘‘where necessary, the court may consider
the complaint supplemented by undisputed facts evidenced in
the record, or the complaint supplemented by undisputed
facts plus the court’s resolution of disputed facts.’’ Herbert v.
Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992) (citing
8 The Coalition also argues that the MetroLink system was
intentionally ‘‘segmented’’ to avoid environmental review of the
Clayton–Shrewsbury Extension. It is not impermissible, however,
to structure construction and funding so as to avoid the burden of
environmental review—this is precisely what the state of Maryland
did in Macht when it decided to scale back its proposed line and
withdraw its federal funding request for the express purpose of
avoiding the delay environmental review might cause. See 916 F.2d
at 15. Nor is there any indication here that the construction has
been structured in a way that will ‘‘lead to evaluation of segments in
isolation of one another, thereby creating a misleading picture of
the impact of the project as a whole.’’ Taxpayers Watchdog, Inc. v.
Stanley, 819 F.2d 294, 299 (D.C. Cir. 1987).
8
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981);
Land v. Dollar, 330 U.S. 731, 735 n.4 (1947); Hohri v. United
States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other
grounds, 482 U.S. 64 (1987); Wilderness Soc’y v. Griles, 824
F.2d 4, 16–17 n.10 (D.C. Cir. 1987); 5A C. Wright & Miller,
Federal Practice and Procedure § 1350, at 213 (1990)). Thus,
to the extent the district court relied on the declaration of the
FTA Regional Director, it did not err. As for the lack of
discovery, the Coalition has made no allegation which, if
substantiated, would establish standing to sue under the
APA. Most importantly, it does not dispute that at present
the federal government has made no commitment to finance
the Clayton–Shrewsbury Extension. Without such a commit-
ment, there is no final federal agency action to review and
therefore no party with standing under section 10(a) of the
APA.
For the foregoing reasons, the judgment of the district
court is
Affirmed.