United States District Court, District of Columbia
C. Lamberth United States District Court Judge.
March 1, 2019, the D.C. Circuit determined that the U.S. Army
Corps of Engineers ("Corps") violated the National
Environmental Policy Act ("NEPA") by failing to
complete an Environmental Impact Study ("EIS")
before issuing a permit to the Virginia Electric and Power
Company ("Dominion") to construct the Surry-Skiffes
Creek-Whealton project ("the project"). The D.C.
Circuit, however, was unaware that the project was completed
shortly before they issued their opinion. Upon learning of the
project's completion shortly thereafter, the D.C. Circuit
remanded the case to this Court to determine the appropriate
turning to the ultimate question of whether vacatur is
proper, two threshold questions must be addressed: (1)
whether defendants waived or forfeited the right to contest
that vacatur is the appropriate remedy; and (2) whether
defendants are judicially estopped from contesting that
vacatur is the appropriate remedy. For the reasons set forth
below, this Court finds that waiver, forfeiture, and judicial
estoppel are all inapplicable here. Furthermore, the Court
finds that vacatur of the permit is not appropriate in this
case. The Court will therefore remand to the Corps without
vacatur but with instructions to complete an EIS in
accordance with the D.C. Circuit's ruling.
of a right is distinct from forfeiture of a right. Waiver is
the "intentional relinquishment or abandonment of a
known right or privilege." United States v.
Olano, 507 U.S. 725, 733 (1993). In contrast, forfeiture
is the "failure to make the timely assertion of a
right." Keepseagle v. Perdue, 856 F.3d 1039,
1053 (D.C. Cir. 2017). Nothing in the record supports the
notion that defendants ever "intentional[ly]
relinquish[ed] or abandon[ed] ... a known right or
privilege," and therefore only the forfeiture issue will
be addressed further. Olano, 507 U.S. at 733.
are correct that defendants' appellate brief contained
only one reference to their desired remedy-remand without
vacatur-in the event that they lost on the merits. Plaintiffs
also stress the fact that this one reference was in the
briefs conclusion, and they cite Bryant v. Gates in
arguing that an issue is waived or forfeited when a
party's argument on an issue consists of only a single,
conclusory statement. 532 F.3d 888, 898 (D.C. Cir. 2008)
(holding in part that an as-applied First Amendment Free
Speech challenge was "doubly forfeit" when not
raised in the district court and when included in the
appellate brief only as a "single, conclusory
statement"). "It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court
to do counsel's work." Schneider v.
Kissinger, 412 F.3d 190, 200 n.l (D.C. Cir. 2005)
(quoting United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990)).
plaintiffs cite numerous cases to support their forfeiture
arguments, those cases all involved the forfeiture of a
merits issue rather than forfeiture of a
remedy issue. The question -of whether the Corps
needed to conduct an EIS (the merits issue) is separate from
the question of whether vacatur is appropriate in this
situation (the remedy issue). In Honeywell Intern., Inc.
v. EPA, the concurring opinion explained that the merits
of a case and the appropriate remedy are different issues
that should be treated separately. See 374 F.3d
1363, 1375 (D.C. Cir. 2004) (Randolph, J., concurring).
Questions of remedy are commonly reserved for post-decision
motions, and "[i]t is quite rare for the parties even to
mention the question of remedy in their merits briefs."
Id. at 1375. Although plaintiffs argue that the
Honeywell concurrence turns in their favor because
Judge Randolph also wrote that "vacating (or reversing)
and remanding unlawful agency action, rather than simply
remanding, should always be the preferred course," that
phrase is relevant to the ultimate issue of whether vacatur
is proper here, not to whether defendants forfeited their
right to contest vacatur. Id. at 1374-75. Because
the question of whether an EIS was required is separate from
the question of whether vacatur is warranted, defendants did
not forfeit their right to contest that vacatur is the
appropriate remedy when they omitted those arguments from
their appellate brief. Essentially, it is standard practice
on appeal to wait until after a decision on the merits to
raise arguments regarding the proper remedy, which is
precisely what defendants did here.
defendants had forfeited their right to contest vacatur, this
Court would still have the authority to consider the
appropriateness of vacatur if "injustice might otherwise
result." Singleton v. Wulff, 428 U.S. 106, 121
(1976); see Hormel v. Helvering, 312 U.S. 552, 557
(1941). Due to the project's importance as a power source
in the region and the amount of money at stake, it would be
unjust not to reach the ultimate question of whether vacatur
is the appropriate remedy in this case. Regardless of what
defendants did or did not argue on appeal,, the hundreds of
thousands of people whose power source could be impacted .by
this decision are not responsible for what defendants
included in their appellate briefs, yet they are the ones who
would be directly affected if the Court failed to reach the
remedy issue in this case. Therefore, even if defendants had
waived or forfeited their remedy argument, the Court would
still exercise its discretion to reach the question of
whether vacatur is appropriate in this instance.
estoppel is an equitable doctrine that precludes a party from
"adopting a legal position in conflict with one earlier
taken in the same or related litigation" in order to
"protect the integrity of the judicial process."
New Hampshire v. Maine, 532 U.S. 742, 749 (2001).
When determining whether judicial estoppel applies, courts
generally consider three factors: (1) whether a party's
later position is clearly inconsistent with their earlier
position; (2) whether judicial acceptance of an inconsistent
position in a later proceeding would create the perception
that the court was misled; and (3) whether the party
asserting the inconsistent position would derive an unfair
advantage or impose an unfair detriment on the opposing party
if not estopped. Id. at 750-51.
with the first factor, defendants have not taken
"clearly inconsistent" positions throughout this
litigation. At the preliminary injunction stage, defendants
argued that there would be no irreparable harm without a
preliminary injunction because the court could later order
the towers torn down if plaintiffs prevailed on the merits.
Plaintiffs have since prevailed on the merits, and defendants
are now within their rights to argue against vacatur as the
appropriate remedy. Defendants said that the court
could order vacatur if plaintiffs prevailed on the
merits, not that the court must order vacatur if
plaintiffs prevailed on the merits. For example, defendants
stated at the preliminary injunction stage, "[I]f
necessary ... any visible infrastructure could be removed and
the existing views thus fully restored." Dominion's
Mem. in Opp. to Plaintiffs Motion for Preliminary Inj. at 38,
National Trust ECF No. 22. They also acknowledged that
"[t]he D.C. Circuit has made clear that courts have the
authority to order removal of completed infrastructure
projects upon finding violations of the National
Environmental Policy Act... if equity so requires."
Dominion's Mem. in Opp. to Plaintiffs Emergency Motion
for an Inj. Pending Appeal at 3, NPCA ECF No. 114. Similarly,
defendants noted that if plaintiffs prevailed on the merits,
Dominion would likely "have no choice but to remove the
towers ... absent express authority from a court or
otherwise" because it "would be within the
Court's authority to order Dominion to take down the
towers." Id. at 10. Even when there is
ambiguity about whether a clear inconsistency exists, courts
should "assum[e] there is no disabling inconsistency, so
that the second matter may be resolved on the merits."
Comcast Corp. v. FCC, 600 F.3d 642, 647 (D.C. Cir.
2010) (quoting 18B Charles Alan Wright, Arthur Miller &
Edward H. Cooper, Federal Practice and Procedure § 4477,
at 594 (2d ed. 2002)). It is thus presumed that judicial
estoppel does not apply unless the opposing party can show
that it should, which plaintiffs have not been able to do.
the briefs that defendants submitted to this Court after the
D.C. Circuit remanded the case are not clearly inconsistent
with their previous contention that the court could order
vacatur. Although defendants argue that vacatur is
unwarranted here, at no point do they claim that this Court
must not order vacatur or that this Court is
without the power to order vacatur- they merely try
to persuade the Court to exercise its vast discretion in
their favor. The difference between could and
must is paramount, as that distinction is what
prevents this Court from finding. a "clear
inconsistency" under the first factor of the test.
New Hampshire, 532 U.S. at 750-51.
to the second factor, plaintiffs overstate what constitutes
the perception that the court was misled. Plaintiffs contend
that the mere perception, absent evidence of malintent, is
sufficient to warrant the application of judicial estoppel.
That is simply not true. The Supreme Court specifically
stated that judicial estoppel should not be applied
"when a party's prior position was based on
inadvertence or mistake." Id. at 753. Likewise,
the D.C. Circuit has explained that estoppel is about
preventing "cold manipulation" rather than
"unthinking or confused blunder."
Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C. Cir.
importantly, however, the second factor is not met because
this Court was not actually misled, and "[i]t follows
that judicial estoppel should not be applied if no judicial
body has been led astray." Id. This Court
certainly never took defendants' argument that the court
could later order vacatur to mean that this Court
would be required to order vacatur. It has always
been understood that although vacatur is the standard remedy,
there would still be discretion not to order vacatur. The
Court certainly never expected Dominion to stop building the
towers when plaintiffs' preliminary injunction was
denied, as that would have essentially amounted to a
self-imposed injunction. The Court recognized the possibility
of the towers being completed while this litigation was still
pending, yet both this Court and the D.C. Circuit denied the
preliminary injunction. This Court also understood that if
plaintiffs prevailed on the merits, the project's status
would be considered under the second Allied-Signal
factor when deciding whether to order vacatur. Although the
D.C. Circuit expressed concerns about defendants'
arguments, it is unlikely that they were misled either, as
the D.C, Circuit undoubtedly understood when ruling on the