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

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.