United States District Court, District of Columbia
FRIENDS OF THE CAPITAL CRESCENT TRAIL et al. Plaintiffs,
FEDERAL TRANSIT ADMINISTRATION et al., Federal Defendants.
STATE OF MARYLAND, Defendant-Intervenor.
MEMORANDUM OPINION [DKT.# 145]
RICHARD J. LEON JUDGE.
before the Court is defendant-intervenor the State of
Maryland's Motion for Stay Pending Appeal and
Reinstatement of Record of Decision [Dkt. # 145]. In its
motion, Maryland asks me to stay my May 30, 2017 final
judgment and my August 3, 2016 Order vacating the Record of
Decision ("ROD") approving the Purple Line Project,
which would permit Maryland to obtain federal funding and
begin construction during the pendency of its appeal to our
Circuit Court. Upon consideration of the pleadings, the
record evidence, and the relevant law, I find that Maryland
has shown neither a likelihood of success on the merits nor
the sort of irreparable harm that warrants equitable relief,
and has therefore not met the stringent requirements for a
stay pending appeal. As such, Maryland's Motion must be
decision marks my fifth substantive opinion on this matter in
the past eleven months, so a brief summary of the relevant
factual and procedural history will suffice. In March 2014,
the Federal Transit Administration ("FTA") issued a
ROD approving the Purple Line Project, a 16.2-mile light rail
project in Montgomery and Prince George's Counties,
Maryland. AR1_000001-03. In August 2014, Friends of the
Capital Crescent Trail ("FCCT"), John MacKnight
Fitzgerald, and Christine Real de Azua (collectively,
"plaintiffs") filed suit in this Court, challenging
the ROD and related approvals by the U.S. Fish and Wildlife
Service ("FWS") under the Administrative Procedure
Act ("APA"), 5 U.S.C. §§ 551-706, and
five substantive statutes: (1) the National Environmental
Policy Act ("NEPA"), 42 U.S.C. § 4321 et
seq.; (2) the Federal Transit Act, 49 U.S.C. §
5309; (3) Section 4(f) of the Department of Transportation
Act, 23 U.S.C. § 138; (4) the Endangered Species Act, 16
U.S.C. §§ 1531-1544; and (5) the Migratory Bird
Treaty Act, 16 U.S.C. § 703. See generally Am.
Compl. [Dkt. # 20]; First Suppl. Compl. [Dkt # 33]; Second
Suppl. Compl. [Dkt # 42].
August 2016, upon consideration of the parties'
cross-motions for summary judgment, I granted partial summary
judgment to plaintiffs, finding that the FTA violated the APA
when it relied on the formal ownership distinction between
the Purple Line and WMATA Metrorail and therefore refused to
consider the effect that Metrorail's recent safety and
ridership issues could have on the Purple Line Project. Aug.
3, 2016 Mem. Op. and Order [Dkts. ## 96, 97]. As a result, I
vacated the ROD and remanded to the FTA to prepare a
supplemental environmental impact statement
("SEIS") addressing these issues as expeditiously
as possible. Id. In response, federal defendants and
Maryland filed motions to alter or amend the judgment, asking
met to reinstate the ROD and permit the FTA to reassess
whether an SEIS was warranted. Mots, to Alter Judgment [Dkts.
## 98, 99]. In November 2016, I granted in part and denied in
part their motions; although I amended my judgment to give
the FTA an opportunity to critically evaluate the likely
effects of WMATA's ridership and safety issues and
determine what level of additional NEPA analysis was required
for the Purple Line, I determined that reinstatement of the
ROD was unwarranted under the law of this Circuit. Nov. 22,
2016 Mem. Op. and Order [Dkts. ## 109, 110].
remand, the FTA relied on a previously prepared Maryland
Transit Authority ("MTA") technical assessment and
concluded that Metrorail's ridership and safety issues
did not constitute the type of information that requires an
SEIS, and both FTA and Maryland filed renewed motions for
summary judgment. Fed. Defs.' Renewed Cross-Mot. for
Summ. J. [Dkt. # 115]; Maryland's Renewed Cross-Mot. for
Summ. J. [Dkt. # 116], On May 22, I issued an opinion holding
that the FTA had yet again failed to the take the requisite
"hard look" that WMATA Metrorail ridership and
safety issues could have on the project, and I again ordered
Maryland to prepare an SEIS as expeditiously as possible. May
22, 2017 Mem. Op. and Order [Dkts. ## 138, 139].
Soon thereafter, on May 30, 1 granted summary judgment to
defendants on all of plaintiffs' remaining claims and
entered final judgment. Final Judgment [Dkt. # 142]. Less
than a week later, Maryland filed the instant motion, asking
me to stay my final judgment and my order vacating the ROD
during its appeal. [Dkt. # 145].
court's decision to stay its final judgment pending
appeal is an extraordinary remedy that constitutes an
"intrusion into the ordinary process of. . .judicial
review." Nken v. Holder, 556 U.S. 418, 428
(2009); see also Cuomo v. U.S. Nuclear Regulatory
Comm'n, 772 F.2d 972, 978 (D.C. Cir. 1985). As a
result, the decision to grant a stay is entrusted to the
Court's discretion, Nken, 556 U.S. at 443-44,
and the party seeking a stay bears the burden of
"justifying] the exercise of such an extraordinary
remedy." Cuomo, 772 F.2d at 978.
considering whether to stay an order or judgment pending
appeal, courts consider the following four factors: (1)
whether the applicant has made a "strong showing that
[it] is likely to succeed on the merits" of its appeal;
(2) whether the applicant will be irreparably harmed without
the requested stay; (3) whether the stay "will
substantially injure other parties interested in the
proceeding"; and (4) "where the public interest
lies." Nken v. Holder, 556 U.S. 418, 425-26
(2009); see also Cuomo v. U.S. Nuclear Regulatory
Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985);
Washington Metro. Area Transit Comm'n. v. Holiday
Tours, 559 F.2d 841, 842-43 (D.C. Cir. 1977). When
considering these factors, the first two-likelihood of
success on the merits and irreparable harm-are the most
critical. Nken, 556 U.S. at 434.
Maryland Has Not Established a Likelihood of Success on the
determining whether to grant a stay pending appeal, the Court
first considers whether the movant has shown that it is
"likely to succeed on the merits" of its appeal.
Men, 556 U.S. at 425-26.
remand, the FTA considered whether WMATA's ridership and
safety issues required the preparation of an SEIS, and
concluded that they did not. In reaching that conclusion, FTA
relied on a technical assessment that Maryland Transit
Authority had previously prepared in consultation with FTA
experts. See AR6_00552-55 (MTA Technical
Assessment); AR6_000916-23 (FTA Memorandum). The technical
assessment discussed five divergent WMATA ridership
scenarios, ranging from a rapid return to ridership growth to
an "extreme" situation where no riders at all
transfer from WMATA to the Purple Line. AR6_000533-67.
Although the assessment stated that population and employment
growth make it reasonable to believe ridership will return to
a growth trend, AR6_000552, and asserted that the fifth
"extreme" scenario was "highly unlikely",
AR6_000922, the assessment did not critically assess which
scenario was actually most likely to occur. Instead, FTA
concluded that under any of the five scenarios, the Purple
Line would have the same environmental impact and would have
sufficient ridership numbers to meet its identified purpose
and need, and thus concluded there was no need for an SEIS.
In deciding not to prepare an SEIS, the FTA concluded that
the Purple Line would meet its purpose and need no matter
what happens to Metrorail, even though one of the stated
purposes was to "provide better connections to Metrorail
the remand process, plaintiffs submitted a series of letters
and materials to the FTA for its consideration while
conducting its supplemental analysis. Within those materials,
plaintiffs included declarations from, former railroad
executive Dr. Martin Saggese, economist Dr. Frank Lysy, and
transportation planner William G. Allen. . AR6_000298-307;
AR6_0003 08-23; AR6_000324-43. The declarations raised
serious questions about the impact that WMATA's ridership
trends could have on the Purple Line and issues that were
closely related to FTA's decision not to prepare an SEIS.
As an example, Mr. Lysy's declaration included
information that called ...