Scenic America, Inc. v. United States Department of Transportation , 836 F.3d 42 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2015 Decided September 6, 2016
No. 14-5195
SCENIC AMERICA, INC.,
APPELLANT
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00093)
Daniel H. Lutz argued the cause for appellant. With
him on the briefs was Hope M. Babcock. Thomas M.
Gremillion entered an appearance.
William D. Brinton was on the brief for amici curiae The
American Planning Association, et al. in support of petitioner.
Jeffrey E. Sandberg, Attorney, U.S. Department of
Justice, argued the cause for federal appellees. With him on
the brief were Ronald C. Machen Jr., U.S. Attorney at the
time the brief was filed, and Mark R. Freeman, Attorney.
2
Kannon K. Shanmugam argued the cause for
intervenor-appellee Outdoor Advertising Association of
America, Inc. With him on the brief was Allison B. Jones.
Before: PILLARD and WILKINS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: The Highway Beautification
Act (“HBA”), 23 U.S.C. § 131, requires the Federal Highway
Administration (“FHWA”) and each state to develop and
implement individual federal-state agreements (“FSAs”),
detailing, among other things, “size, lighting and spacing”
standards for the billboards now found towering over many of
our country’s interstate highways. One of those adopted
standards, included in most states’ FSAs, prohibits those
states from erecting any billboard with “flashing, intermittent
or moving” lights (the “FSA lighting standards”).
Plaintiff-Appellant Scenic America is a non-profit
organization which “seeks to preserve and improve the visual
character of America’s communities and countryside.”
Compl. ¶ 7, J.A. 10. It challenges a guidance memorandum
issued by the FHWA in 2007, which interpreted that
prohibition on “flashing, intermittent or moving” lights to
permit state approval of those digital billboards that met
certain timing and brightness requirements. Scenic argues
that the guidance memorandum must be invalidated because it
(1) was not promulgated using notice-and-comment
procedures, and (2) violates the HBA, and was therefore
promulgated “contrary to law” in violation of § 706 of the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et
seq.
3
We hold that we lack jurisdiction to hear Scenic’s
notice-and-comment claim because Scenic has failed to
demonstrate that it has standing to bring that challenge, and
deny its § 706 claim on the merits.
I.
A.
In 1965, Congress enacted the Highway Beautification
Act to control “the erection and maintenance of outdoor
advertising signs, displays, and devices in areas adjacent to
the Interstate System . . . in order to protect the public
investment in such highways, to promote the safety and
recreational value of public travel, and to preserve natural
beauty.” 23 U.S.C. § 131(a). The HBA penalizes those
states that fail to maintain “effective control” over their
advertising signs by permitting the Secretary of
Transportation to reduce their federal highway funds by ten
percent. Id. § 131(b).
To maintain effective control, each state is required to,
among other things, negotiate an FSA with the Secretary that
establishes standards for the “size, lighting and spacing” of
billboards that come within 660 feet of the Interstate. Id.
§ 131(d). The HBA requires that those standards be
“consistent with customary use.” Id. All fifty states
entered into such FSAs, most of which were written in the
1960s and 1970s. See Scenic Am., Inc. v. U.S. Dep’t of
Transp. (Scenic II), 49 F. Supp. 3d 53, 57 (D.D.C. 2014).
FHWA regulations, promulgated under the HBA, require that
states “[d]evelop laws, regulations, and procedures” that
implement the standards contained in each state’s FSA. 23
C.F.R. § 750.705(h). States must submit these laws,
regulations, and procedures to the FHWA’s regional offices,
4
known as Division Offices, for approval. Id. § 750.705(j).
The FHWA has one Division Office located in each state.
Although each of the FSAs was individually negotiated,
most contain similar terms. Nearly all of the FSAs contain a
prohibition against “flashing,” “intermittent,” and “moving”
lights. See, e.g., J.A. 120 (New York FSA); J.A. 131
(Colorado FSA); J.A. 139 (North Carolina FSA).
As billboard technology changed, states began
considering or passing laws that permitted digital billboards to
be displayed along the Interstate. See, e.g., J.A. 422-23
(letter from Indiana Department of Transportation to Indiana
FHWA Division Office informing the Division Office that
Indiana had passed a law permitting certain digital
billboards); J.A. 424 (letter from the Indiana FHWA Division
Office to the Indiana Department of Transportation
acknowledging the letter and agreeing that the digital
billboards discussed in Indiana’s previous letter “do[] not
constitute flashing, intermittent or moving lights”); J.A. 437
(letter from Arkansas Highway Commission to Arkansas
FHWA Division Office noting new regulations permitting
digital billboards); J.A. 183 (United States Department of
Transportation memorandum discussing digital billboard in
Nebraska). These billboards, sometimes referred to as
“commercial electronic variable message signs” (“CEVMS”),
typically use LED lights to display a static advertisement that
remains on the screen for a specified period of time before
quickly transitioning to a different static advertisement.
Advertisements typically remain visible for around ten
seconds, and usually take approximately two seconds to
transition to the next ad.
The FHWA’s Division Offices differed on whether
digital billboards complied with the FSA lighting standards.
5
Compare, e.g., J.A. 424 (Indiana Division Office agreeing
that digital billboards “do[] not constitute flashing,
intermittent or moving lights”), with, e.g., J.A. 263 (Texas
Division Office stating that “[w]hile the technology for LED
displays did not exist at the time of the [FSA], the wording in
the [FSA] clearly prohibits such signs”). In 2007, the
national FHWA office weighed in. It issued to its Division
Offices a memorandum entitled “Guidance on Off-Premise
Changeable Message Signs” (the “Guidance” or “2007
Guidance”), a portion of which stated as follows:
Proposed laws, regulations, and procedures that would
allow permitting CEVMS subject to acceptable criteria
(as described below) do not violate a prohibition against
“intermittent” or “flashing” or “moving” lights as those
terms are used in the various FSAs that have been
entered into during the 1960s and 1970s.
J.A. 535. The FHWA went on to identify those “acceptable
criteria” based on “certain ranges of acceptability that have
been adopted in those States that do allow CEVMS.” J.A.
534, 537 (recommending, among other things, that each
display generally remain static for between four and ten
seconds, and transition to a new display in one to four
seconds).
According to a survey the FHWA distributed to states
shortly before issuing the 2007 Guidance, many states with
FSAs that included a ban on intermittent, flashing, or moving
lights permitted digital billboards before the FHWA issued
the Guidance. J.A. 531-32. The Division Office for at
least two states, Texas and Kentucky, did not permit digital
billboards prior to the 2007 Guidance. See Scenic Am., Inc.
v. U.S. Dep’t of Transp. (Scenic I), 983 F. Supp. 2d 170,
6
179-80 (D.D.C. 2013). After the Guidance, Texas began to
permit the use of digital billboards. Lloyd Decl. ¶ 9, J.A. 41.
B.
Scenic brought this suit against the United States
Department of Transportation, the federal executive
department responsible for implementation of the HBA; the
FHWA, which promulgated the 2007 Guidance; Ray LaHood,
the Secretary of Transportation at the time; and Victor
Mendez, the Administrator of FHWA at the time. Scenic did
not include any of the FHWA’s Division Offices in this suit.
Outdoor Advertising Association of America, Inc. (“OAAA”)
intervened as a defendant shortly after Scenic brought suit.
Scenic’s suit alleges two claims relevant to this appeal:
(1) the 2007 Guidance constitutes a legislative, not
interpretive rule, thus violating § 553 of the APA, because it
was not promulgated using notice-and-comment procedures;
and (2) the Guidance violates § 706 of the APA because it
creates a new lighting standard that is not “consistent with
customary use,” as required by the HBA. 1 Compl. ¶¶ 48-53,
57-62, J.A. 17-19.
The FHWA and the OAAA (collectively “Defendants”)
moved to dismiss, contending that Scenic lacked standing,
and that the court lacked jurisdiction over the Guidance
1
Scenic abandoned a third claim on appeal – that the Guidance
improperly creates new lighting standards, in contravention of the
procedures for creating new standards set forth in the HBA. See
Br. for Defendants-Appellees [hereinafter “FHWA Br.”], Scenic
Am., Inc. v. U.S. Dep’t of Transp., No. 14-5195 (D.C. Cir. Feb. 20,
2015), Doc. No. 1538780, at 16 & n.7.
7
because it did not constitute final agency action under the
APA. Scenic I, 983 F. Supp. 2d at 172-73. The District
Court denied Defendants’ motion as to both claims. Id.
Relevant to our decision here, the District Court held, at
the motion to dismiss stage, that Scenic’s requested relief
would redress its harm because “vacating the Guidance would
return the FHWA to agnosticism on the question [of
permitting digital billboards], leaving Division Offices free to
draw their own conclusions.” Id. at 181. According to the
District Court, this would prevent Scenic from “hav[ing] to
police as intensively new digital-billboard construction
around the country.” Id.
Defendants later moved for summary judgment, and the
District Court granted the motions, finding that the Guidance
was not subject to notice-and-comment requirements because
it was an interpretive, not legislative rule, and that it did not
violate the “consistent with customary use” provision of the
HBA. Scenic II, 49 F. Supp. 3d at 59-71. Defendants, in
their summary judgment briefing below, did not again
challenge Scenic’s standing, and the District Court did not
discuss Scenic’s standing in its written Opinion granting
Defendants’ summary judgment motions.
II.
We begin, as we must, by addressing our jurisdiction to
review Scenic’s appeal. Because Scenic must demonstrate its
standing separately as to each of the two claims it brings on
appeal, see Catholic Soc. Serv. v. Shalala, 12 F.3d 1123, 1125
(D.C. Cir. 1994), we find that, although Scenic has standing to
bring its claim concerning FHWA’s alleged § 706 violation,
Scenic has failed to demonstrate it has standing to bring its
notice-and-comment claim.
8
A.
As has been expressed time and time again, “[f]ederal
courts are not courts of general jurisdiction; they have only
the power that is authorized by Article III of the Constitution
and the statutes enacted by Congress pursuant thereto.”
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986). As Chief Justice Marshall observed, “[i]f the
judicial power extended to every question under the
constitution it would involve almost every subject proper for
legislative discussion and decision [and] if to every question
under the laws and treaties of the United States it would
involve almost every subject on which the executive could
act.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341
(2006) (quoting 4 PAPERS OF JOHN MARSHALL 95 (C. Cullen
ed. 1984)) (emphases omitted). Thus, without studious
adherence to the metes and bounds of our jurisdiction as
imposed by Article III, Chief Justice Marshall warned that
“the other departments [of the government] would be
swallowed up by the judiciary.” Id. The standing
requirements of Article III are therefore grounded in respect
for the separation of powers tenets that are the foundation of
our system of government, Valley Forge Christian Coll. v.
Ams. United for Separation of Church & State, Inc., 454 U.S.
464, 471-74 (1982), and they help “prevent the judicial
process from being used to usurp the powers of the political
branches,” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,
1146 (2013). Observing our Article III limitations is
therefore always important, and particularly so in a case such
as this, where we are asked to invalidate an action of the
Executive branch.
The “irreducible constitutional minimum of standing”
requires that a plaintiff demonstrate three elements: (1) injury
in fact; (2) causation; and (3) redressability. Lujan v. Defs.
9
of Wildlife, 504 U.S. 555, 560-61 (1992). “The party
invoking federal jurisdiction bears the burden of establishing
these elements”; “each element must be supported in the same
way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.” Id. at
561.
Thus, the plaintiff must meet this burden at the outset of
each phase. “At the pleading stage, general factual
allegations of injury resulting from the defendant’s conduct
may suffice . . . .” Id. And a court’s determination that a
plaintiff has established standing at the motion to dismiss
stage by alleging sufficient facts in her pleadings is only the
first step, because that finding does not obviate the court’s
responsibility to ensure that the plaintiff can actually prove
those allegations when one or both parties seek summary
judgment. So even where the court denies a motion to
dismiss based on lack of standing, “[i]n response to a
summary judgment motion, . . . the plaintiff can no longer
rest on such mere allegations, but must set forth by affidavit
or other evidence specific facts [establishing standing].” Id.
(internal quotation marks omitted). 2 If, upon review of the
2
Our treatment of standing in cases that come to us directly on
administrative review is instructive. Because these petitions for
administrative review bypass the district court and come to us
directly, we treat them as a district court would in deciding a
motion for summary judgment. See Sierra Club v. EPA, 292 F.3d
895, 899 (D.C. Cir. 2002). In Sierra Club, we held, “mindful of
our independent obligation to be sure of our jurisdiction,” that the
petitioner there had failed to establish its burden as to standing.
Id. at 898, 902. We explained that “[t]he petitioner’s burden of
production in the court of appeals is . . . the same as that of a
plaintiff moving for summary judgment in the district court: it must
10
evidence, the court determines that the plaintiff has not
introduced sufficient evidence into the record to at least raise
a disputed issue of fact as to each element of standing, the
court has no power to proceed and must dismiss the case.
See, e.g., Clapper, 133 S. Ct. at 1148-49 (dismissing case
where plaintiff did not raise an issue of fact as to standing at
summary judgment).
In addition, “every federal appellate court has a special
obligation to ‘satisfy itself not only of its own jurisdiction, but
also that of the lower courts in a cause under review.’”
Bender, 475 U.S. at 541 (quoting Mitchell v. Maurer, 293
U.S. 237, 244 (1934)). If we determine that the District
Court was without jurisdiction, then “we have jurisdiction on
appeal, not of the merits but merely for the purpose of
correcting the error of the lower court in entertaining the
suit.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
95 (1998) (quoting Arizonans for Official English v. Arizona,
520 U.S. 43, 73 (1997)).
We review the District Court’s decision (or lack thereof)
as to standing de novo, Info. Handling Servs., Inc. v. Def.
Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir.
2003), and hold that Scenic has not met its burden of
support each element of its claim to standing ‘by affidavit or other
evidence.’” Id. at 899 (quoting Defs. of Wildlife, 504 U.S. at 561).
Just as we must ensure our jurisdiction over petitions brought to us
directly, so too must the district court assure itself of its jurisdiction
before assessing a summary judgment motion on the merits.
11
establishing its standing to bring its notice-and-comment
claim. 3
3
The FHWA challenged Scenic America’s standing at the motion
to dismiss stage, and though the District Court held in favor of
Scenic, it noted that the issue “presents difficult and close
questions.” Scenic I, 983 F. Supp. 2d at 172. When the FHWA
later moved for summary judgment, therefore, Scenic was already
on notice that its standing might be questioned on appeal, at which
time the record would be closed. Scenic therefore cannot claim to
have been deprived of a fair and “full opportunity to make a record
of [its] standing in the district court.” Swanson Grp. Mfg. LLC v.
Jewell, 790 F.3d 235, 241 (D.C. Cir. 2015). Scenic should have
accompanied its summary judgment materials with evidence of its
standing. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 897
(1990) (“[A] litigant’s failure to buttress its position because of
confidence in the strength of that position is always indulged in at
the litigant’s own risk.”).
Because the plaintiff has the burden to establish the evidentiary
basis for its standing at the summary judgment stage in every case,
just as it has the burden to plead sufficient facts at the motion to
dismiss stage in every case, the District Court may wish to consider
amending its local rules to provide that the plaintiff include its
evidentiary basis for standing in the statement of material facts that
every party is required to file either in support of, or in opposition
to, a motion for summary judgment. See Civil Local Rule 7(h)(1).
Such a rule would ensure that the plaintiff is on notice of its
obligation to present such evidence, make the District Court’s job
much easier (as well as ours), and function similarly to our Circuit
Rule 28(a)(7), which we adopted after our ruling in Sierra Club.
12
Barb.
1.
Scenic’s notice-and-comment claim turns on the
redressability prong of Article III standing. Scenic asserts
that the 2007 Guidance forced certain FHWA Division
Offices to reinterpret the FSA lighting standards – that
billboards may not contain “flashing, intermittent or moving”
lights – so that those offices would thereafter find the FSA
language to permit, rather than bar, digital billboards.
Scenic claims that this alleged change of position made it
easier for states to erect digital billboards, because they no
longer had to worry about being prevented from doing so by
the Division Offices. As a result, Scenic allegedly has to
work harder, and thus spend greater resources, to fight these
billboards – its injury in fact. Scenic claims that vacating the
Guidance will redress that injury.
In this way, Scenic asserts injuries that stem not directly
from the FHWA’s issuance of the 2007 Guidance, but from
third parties not directly before the court – the Division Offices
and the states. When “[t]he existence of one or more of the
essential elements of standing” – in this case redressability –
“‘depends on the unfettered choices made by independent
actors not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume either to
control or to predict,’” it becomes “‘substantially more
difficult’ to establish” standing. Defs. of Wildlife, 504 U.S. at
562 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615
(1989); Allen v. Wright, 468 U.S. 737, 758 (1984)); accord
Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930,
938 (D.C. Cir. 2004). “[M]ere ‘unadorned speculation’ as to
the existence of a relationship between the challenged
government action and the third-party conduct ‘will not suffice
13
to invoke the federal judicial power.’” Nat’l Wrestling, 366
F.3d at 938 (quoting Simon v. E. Ky. Welfare Rights Org., 426
U.S. 26, 44 (1976)).
Scenic’s complaint makes only two arguments concerning
the redressability of its notice-and-comment claim. First, it
argues that if we vacate the 2007 Guidance, “Scenic America
and its affiliate members would spend fewer resources
combating new digital billboards.” Compl. ¶ 21, J.A. 12.
This speaks to Scenic’s alleged organizational standing. See
PETA v. U.S. Dep’t of Agric., 797 F.3d 1087, 1093 (D.C. Cir.
2015) (organizational standing “requires [an organizational
plaintiff], like an individual plaintiff, to show actual or
threatened injury in fact that is fairly traceable to the alleged
illegal action and likely to be redressed by a favorable court
decision” (internal quotation marks omitted)). Second,
Scenic contends that if we vacate the 2007 Guidance, “digital
billboards that injure Scenic America members would be
subject to removal or an order to cease operating in a manner
that violates the regulatory prohibition against intermittent
lighting in billboard advertisements.” Compl. ¶ 21, J.A. 12.
This speaks to Scenic’s representational standing. See Hunt v.
Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)
(recognizing “that an association has standing to bring suit on
behalf of its members when: (a) its members would otherwise
have standing to sue in their own right; (b) the interests it seeks
to protect are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit”).
14
2.
a.
Scenic has failed to demonstrate that our vacatur of the
Guidance would redress its alleged organizational injury – that
it is forced to expend greater resources fighting digital
billboards because the 2007 Guidance makes it easier for states
to erect such billboards.
States are required to seek permission from the FHWA
Division Offices before they permit the use of digital
billboards. See 23 C.F.R. § 750.705(j). Prior to the FHWA’s
issuance of the Guidance, those Offices could, and often did,
authorize that use, finding that it accorded with a given state’s
FSA. Scenic has introduced no evidence into the record – as it
must at summary judgment – establishing that if we were to
vacate the Guidance, any Division Office would respond by
preventing the state it oversees from erecting digital billboards;
nor has Scenic submitted evidence establishing that states
would successfully erect, or even seek to erect, fewer
billboards. Without providing any indication that our vacatur
of the Guidance will diminish the number of billboards Scenic
has to fight, Scenic has failed to demonstrate that its requested
remedy would prevent Scenic from having to expend the same
amount of resources fighting these billboards.
A brief look at some of our previous decisions in this area
reinforces the point. In National Wrestling, we assessed the
standing of several associations representing men’s wrestling
teams, some of whom had been cut from college athletic
programs. 366 F.3d at 933. Department of Education
regulations, promulgated under Title IX, required college
athletic programs to ensure that they provided equal athletic
opportunities to both sexes, based in part on the resources that
are devoted to various programs. Id. at 934-35. Plaintiffs did
15
not challenge those regulations. Instead, plaintiffs challenged
a Department of Education interpretation of those regulations,
which they claimed caused several athletic programs to
eliminate their wrestling teams. Id. We held that plaintiffs
lacked standing because they were unable to show that a
favorable decision would redress their injuries. Id. at 938.
We noted that the “direct causes of appellants’ asserted
injuries – loss of collegiate-level wrestling opportunities for
male student-athletes – are the independent decisions of
educational institutions.” Id. at 936-37. Even if we vacated
the Department of Education’s interpretation, there was no
indication that it would alter those institutions’ independent
decisions to eliminate their wrestling teams. Id. at 939.
Nothing in the Department’s interpretation required schools to
eliminate their wrestling teams; schools did so in an attempt to
ensure that they were distributing athletic resources equally – a
requirement of Title IX more generally, irrespective of the
interpretation that plaintiffs challenged. See id. at 939-40
(asserting that “nothing but speculation suggest[ed] that
schools would act any differently” if the court vacated the
interpretation). We noted that plaintiffs would only meet
standing requirements if they “took the position that
gender-conscious elimination of men’s sports teams would be
illegal in the absence of the challenged” interpretation, but that
plaintiffs made no such claim. Id. at 941. Finally, we
explained that the “possibility” that wrestling teams would
have “better odds” if we vacated the Department’s
interpretation “falls far short of the mark.” Id. at 942
(emphasis omitted).
We held similarly in Renal Physicians Ass’n v. United
States Department of Health and Human Services. 489 F.3d
1267 (D.C. Cir. 2007). That case involved the Stark Law,
which limited the ability of a physician to refer a Medicare
16
patient to clinical laboratories with which the physician had a
“financial relationship,” but permitted referrals where the
physician’s only financial interest was the receipt of
compensation at “fair market value.” Id. at 1269. The
Department of Health and Human Services, which was
authorized to promulgate regulations under the Law, created a
“safe harbor” provision, describing two methods for
demonstrating that a physician’s hourly rate was at fair market
value. Id. at 1270. The Department also noted, however,
that the safe harbor was voluntary, and that health care
providers could continue to establish fair market value through
other methods. Id. at 1269-71.
After a physicians’ association challenged the safe harbor
provision under the APA, we held that plaintiff lacked
standing because it failed to show that vacating the safe
harbor provision would redress its members’ alleged injuries
– namely that the safe harbor provision caused them to be
paid less for their services than would otherwise be the case.
Id. at 1276-78. Because the safe harbor was merely one way
that hospitals could determine “fair market value,” we noted
that “it is ‘speculative,’ rather than ‘likely,’ that invalidating
the safe harbor will somehow cause these facilities to pay
more,” and that “[t]he effect (if any) of the safe harbor cannot
be simply undone.” Id. at 1277.
As in Renal Physicians, the FHWA created what is, in
essence, a safe harbor provision regarding digital billboards.
The 2007 Guidance made it clear that state laws and
regulations regarding digital billboards meeting the
specifications listed in the Guidance would not be rejected for
violating the FSA lighting standards. Yet even after the
Guidance, Division Offices can still approve state laws and
regulations permitting billboards that fall outside those
specifications, and they can still reject laws and regulations
17
allowing billboards that meet those specifications, but that
violate state FSAs for other reasons. The safe harbor created
by the Guidance is voluntary in the same way as the safe
harbor in Renal Physicians; Division Offices can rely on it to
find certain billboards permissible, but those Offices can find
those billboards permissible for other reasons as well. It is
“speculative,” rather than “likely,” that invalidating the
Guidance would stop any particular billboard from being
constructed. Indeed, many states with FSAs that included a
ban on intermittent, flashing, or moving lights permitted
digital billboards prior to the 2007 Guidance.
In sum, we cannot assume, without more, that vacating
the Guidance would eliminate or lessen the construction of
digital billboards.
Scenic contends that because the Texas Division Office
barred Texas from constructing digital billboards prior to the
Guidance, vacating the Guidance would redress Scenic’s
injuries, at least with respect to Texas. However, Scenic has
introduced no evidence suggesting that Texas, or the Texas
Division Office, would behave any differently in the absence
of the 2007 Guidance. Scenic simply assumes, without any
proof, that Texas will revert to its pre-Guidance position as
soon as the Guidance is invalidated.
Scenic’s assumption is nothing more than “unadorned
speculation.” Simon, 426 U.S. at 44. Several other
possibilities seem just as likely, were we to vacate the 2007
Guidance. The Guidance may have focused the Texas
Division Office on the fact that a majority of states had
already determined that the FSA lighting standards permitted
digital billboards. Knowing as much, Texas’s Division
Office might be more inclined to “jump on the bandwagon”
and permit such billboards going forward, even absent the
18
2007 Guidance. Or the Division Office might be persuaded
to continue allowing digital billboards now that Texas has
already issued permits for at least 150 of them, Lloyd Decl.
¶ 9, J.A. 41. See Renal Physicians, 489 F.3d at 1278 (“[T]he
word is already out, and therefore it is too late to reverse
course. . . . [T]he undoing of the governmental action will
not undo the harm, because the new status quo is held in place
by other forces.”).
Scenic has introduced no evidence that would make any
one of these possibilities more likely than another.
Particularly given the difficulty of establishing standing based
on the actions of third parties not before the Court, see Defs.
of Wildlife, 504 U.S. at 562, Scenic’s lack of any evidentiary
basis for its redressability contentions requires us to reject its
standing as to its notice-and-comment claim.
As a final argument, Scenic relies on Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429
U.S. 252 (1977), and contends that vacating the 2007
Guidance would remove one of several barriers to Scenic’s
anti-digital billboard efforts, and that this is sufficient for
redressability purposes. However, Arlington Heights is
inapposite here.
As an initial matter, Arlington Heights involved a party
directly harmed by the challenged action, not one harmed by
the actions of a third party not before the Court. See id. at
254. Moreover, Arlington Heights involved a developer’s
challenge to a zoning ordinance that prevented it from
building low-income housing. Id. at 255-58. The Supreme
Court characterized the zoning ordinance as an “absolute
barrier.” Id. at 261. Although the developer still needed to
secure financing and qualify for federal subsidies, the
challenged zoning ordinance ensured that the developer could
19
not proceed with its goal of constructing low-income housing.
Id. at 261-62. A court decision to remove that barrier would
redress the developer’s injury because a major impediment to
the developer’s efforts would be eliminated.
Scenic has introduced no evidence showing that vacating
the 2007 Guidance would remove an “absolute barrier” to its
efforts. As we have already stated above, absent the 2007
Guidance, states remain free to pursue digital billboard
construction, and Division Offices remain free to permit such
construction. Thus, Scenic has not established that
invalidating the Guidance would improve or ease Scenic’s
efforts in any way. 4
b.
Scenic’s representational standing claim fares no better.
Scenic argues that vacating the 2007 Guidance will redress its
members’ injuries because it will cause the digital billboards
allegedly injuring those members to be removed. Compl.
¶ 21, J.A. 12. Scenic came dangerously close to forfeiting this
argument. See Huron v. Cobert, 809 F.3d 1274, 1279-80
(D.C. Cir. 2016).
Presumably because the District Court had upheld
Scenic’s standing at the motion to dismiss stage, and
Defendants had not contested Scenic’s standing before the
4
Scenic did not argue that the FHWA’s failure to undertake notice
and comment before promulgating the Guidance constitutes a
procedural injury, and we express no opinion on such an argument.
Although a party cannot forfeit a claim that we lack jurisdiction, it
can forfeit a claim that we possess jurisdiction. See Huron v.
Cobert, 809 F.3d 1274, 1279-80 (D.C. Cir. 2016).
20
District Court at the summary judgment stage, Scenic did not
address its standing in its opening brief on appeal. In their
responding brief, however, the FHWA challenged anew
Scenic’s standing. The FHWA contended that Scenic had
offered “no basis for expecting that vacating the Guidance
would cause any existing digital billboards to be dismantled.”
See FHWA Br. 29. In reply, Scenic appeared to abandon the
allegation. It repeated the FHWA’s contention and responded
that “Plaintiff need only show that vacatur would reduce
Plaintiff’s continuing injury of diverting limited resources to
counteract billboard approvals.” Reply Br. for Appellant 10.
Nonetheless, Scenic appears to have preserved its
representational standing argument by painting it in a
somewhat different light. It argues that the alleged injuries of
one of its members – Nikki Laliberte – are “traceable to the
Guidance” because the Guidance prohibits the Division
Office in Minnesota, where Laliberte lives, from considering
whether digital billboards violate the FSA lighting standards.
See Reply Br. for Appellant 12. Scenic’s implication seems
to be that vacating the Guidance might cause Minnesota’s
Division Office to remove some digital billboards. Although
Scenic’s argument is couched in terms of causation,
“causation and redressability are closely related, and can be
viewed as two facets of a single requirement.” Newdow v.
Roberts, 603 F.3d 1002, 1012 n.6 (D.C. Cir. 2010) (internal
quotation marks omitted). Thus, Scenic’s assertion is
sufficient to preserve its representational standing claim.
As we noted above, however, Scenic has introduced no
evidence demonstrating that our vacatur of the Guidance
would cause Division Offices or states to prohibit the
construction of new digital billboards. See supra Part
II.B.2.a. It is even less plausible, given Scenic’s complete
lack of any evidentiary showing on the matter, that Division
21
Offices or states would require extant billboards to be
dismantled.
By neglecting to “set forth by affidavit or other evidence
specific facts” establishing its representational standing, Defs.
of Wildlife, 504 U.S. at 561 (internal quotation marks
omitted), Scenic has failed to meet its burden to demonstrate
its representational standing to bring its notice-and-comment
claim.
3.
Scenic does fare better, however – at least as to standing –
on its claim that the Guidance violated § 706, although barely.
a.
In its complaint, Scenic alleges that FHWA’s actions, in
promulgating the Guidance, are “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law, in
violation of the APA.” Compl. ¶ 62, J.A. 19. That language
appears to be taken from § 706(2)(A) of the APA, which sets
forth the well-known “arbitrary and capricious” standard, and
which would likely provide an effective cause of action for
Scenic to challenge the FHWA’s alleged failure to comport
with the HBA. Confusingly, however, Scenic does not cite
§ 706 as part of its second claim, but rather cites § 553, the
provision that concerns notice-and-comment rulemaking. See
id. ¶¶ 57-62, J.A. 18-19.
Construing the complaint liberally, as is sometimes
appropriate, but cf. Settles v. U.S. Parole Comm’n, 429 F.3d
1098, 1104, 1106 (D.C. Cir. 2005) (explaining that although
“the complaint – particularly a complaint filed by a pro se
prisoner – should be construed liberally,” “the rule of liberal
construction of complaints applies to factual allegations,” and
22
refusing to liberally construe a counseled plaintiff’s complaint
so as to include new defendants (quoting Fletcher v. District of
Columbia, 370 F.3d 1223, 1227 n.* (D.C. Cir. 2004))), it might
be possible to construe Scenic’s complaint as having relied
upon § 706 rather than, or in addition to, § 553. At oral
argument, however, counsel for Scenic was specifically asked
whether its second claim included a § 706 challenge to
FHWA’s promulgation of the guidance, and Scenic’s counsel
replied “no, we did not present that.” Counsel went on to state
that to the extent it brought anything resembling an
arbitrary-and-capricious challenge it did it through the
“backdoor” of its notice-and-comment claim, specifically
highlighting its argument that that the Guidance is a legislative
rule because it is 180 degrees counter to the FSA text it alleged
to be interpreting. Thus, it appears that Scenic disclaimed any
arbitrary-and-capricious challenge to FHWA’s alleged failure
to comport with the HBA.
Nonetheless, during that same colloquy at oral argument,
Scenic did state, with respect to its § 706 claim, that it “focused
solely on the customary use provision, finding that it was
contrary to law.” Giving Scenic the benefit of the doubt,
Scenic’s papers and statements at oral argument are sufficient
for us to eke out a § 706 claim.
b.
Scenic has standing to bring such a § 706 claim. First,
Scenic has offered sufficient evidence that it has suffered a
representational injury in fact. The record at summary
judgment demonstrates that at least one of its members, Nikki
Laliberte, has suffered a concrete injury because a digital
billboard near her home “generates a bright flash when its
display transitions from one advertisement to another.”
Laliberte Decl. ¶ 4, J.A. 52. She asserts that the billboard “has
23
marred the view from [her] home[],” and that she is “concerned
that the billboard has negatively affected the value of [her]
property.” Id. ¶¶ 6, 9, J.A. 52-53. This sort of harm to an
individual’s property is sufficient to constitute a concrete
injury in fact. See Idaho, By & Through Idaho Pub. Utils.
Comm’n v. ICC, 35 F.3d 585, 591 (D.C. Cir. 1994) (noting that
a private landowner “suffers concrete injury if [her] property is
despoiled”).
The causation and redressability prongs of our standing
analysis are equally clear here. Scenic’s § 706 claim is that
the Guidance runs afoul of the statute’s “customary use”
requirement as that requirement has been interpreted in the
FSAs. If we were to find for Scenic on the merits of its claim,
a point we must assume for standing purposes, see LaRoque v.
Holder, 650 F.3d 777, 785 (D.C. Cir. 2011), we could only do
so by effectively repudiating the FHWA’s interpretation of the
FSAs. Repudiation would provide much more robust relief
than vacatur. Not only would it prohibit the agency from
relying on that interpretation in any future rulemakings, it
would also require the agency to subject extant billboards to
either removal or an order requiring those billboards to operate
in a manner that does not violate the FSAs, for instance by
keeping the image displayed by the billboard constant and
unchanging. Scenic’s injury, clearly caused by the Guidance,
is therefore redressable. See Renal Physicians, 489 F.3d at
1278 (holding that “the only way to prevent” a finding that
redressability is lacking in the third-party context is “for a court
not only to invalidate [the contested agency action] but also to
repudiate” it).
24
III.
FHWA argues that the Guidance is not a final agency
action and is therefore not reviewable under the APA. We
disagree.
An agency action will be deemed final if it “mark[s] the
consummation of the agency’s decisionmaking process” and is
an action “by which rights or obligations have been
determined, or from which legal consequences will flow.”
Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal
quotation marks omitted). “The most important factor” in
determining whether an agency action is one “from which legal
consequences will flow” “concerns the actual legal effect (or
lack thereof) of the agency action in question on regulated
entities.” Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 252
(D.C. Cir. 2014).
The Guidance marks the consummation of FHWA’s
decision-making process. It comes to a definitive conclusion:
the FSA’s prohibition on “flashing, intermittent or moving”
lights does not prevent states from permitting digital
billboards, so long as they meet certain prescribed
requirements. Although the Guidance does state that the
FHWA “may provide further guidance in the future as a result
of additional information” FHWA might receive, J.A. 535,
such a statement is fairly read as a “boilerplate” indication that
the agency may issue further interpretations in the future. See
Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022-23 (D.C.
Cir. 2000). The fact that a regulation might be interpreted
again at some point in the indeterminate future cannot, by
itself, prevent the initial interpretation from being final.
The Guidance is also an action “from which legal
consequences will flow.” It creates a safe harbor such that
Division Offices and states may not deny a digital billboard
25
permit for violating the FSA lighting standards where that
billboard meets the timing and other requirements set forth in
the Guidance. In this way, the Guidance withdraws some of
the discretion concerning billboard permitting the Division
Offices and states previously held. See NRDC v. EPA, 643
F.3d 311, 320 (D.C. Cir. 2011) (concluding that where agency
action withdraws an entity’s previously-held discretion, that
action “alter[s] the legal regime,” “binds” the entity, “and thus
qualifies as final agency action”). That safe harbor has a clear
legal effect on the regulated entities here – the Division Offices
and the states – and the Guidance is therefore a final agency
action.
IV.
Having concluded that Scenic has standing to bring its
§ 706 claim, and that the Guidance constitutes final agency
action, we now review the merits of the claim de novo, see
Khan v. Parsons Glob. Servs., Ltd., 428 F.3d 1079, 1082 (D.C.
Cir. 2005), and find them lacking.
Scenic argues that the Guidance is invalid because it fails
to comport with the HBA’s “customary use” provision. That
provision states that “signs, displays, and devices whose size,
lighting and spacing, consistent with customary use is to be
determined by agreement between the several States and the
Secretary, may be erected” within 660 feet of the Interstate.
23 U.S.C. § 131(d) (emphasis added). Scenic contends that
the FHWA, in issuing the Guidance, changed the FSA lighting
standards to such an extent that those standards are no longer
“consistent with customary use.” According to Scenic
“[a]nything outside the scope of what an FSA meant at the time
it was created cannot be ‘customary use.’” Opening Br. for
Appellant 36.
26
In Cajun Electric Power Cooperative, Inc. v. FERC, we
clarified that
[a]ny agreement that must be filed and approved by
an agency loses its status as a strictly private contract
and takes on a public interest gloss. That means that
when the agency reconciles ambiguity in such a
contract it is expected to do so by drawing upon its
view of the public interest. And, therefore, the
agency to which Congress entrusted the protection
and discharge of the public interest is entitled to just
as much benefit of the doubt in interpreting such an
agreement as it would in interpreting its own orders,
its regulations, or its authorizing statute.
924 F.2d 1132, 1135 (D.C. Cir. 1991) (internal citations
omitted); see also Nat’l Fuel Gas Supply Corp. v. FERC, 811
F.2d 1563, 1569-71 (D.C. Cir. 1987) (treating an agency
interpretation of a settlement agreement as entitled to
deference similar to that owed under Chevron where the
settlement agreement had to be approved by the agency). The
FSAs, as agreements between the FHWA and individual states,
see 23 U.S.C. § 131(d), were thus approved by the FHWA as
described in Cajun Electric.
Further, as the District Court explained, “[b]oth
Defendants and Scenic America recognize . . . that all FSA
lighting provisions were established consistent with customary
use.” Scenic II, 49 F. Supp. 3d at 71 (quoting or citing both
parties’ briefing) (internal quotation marks omitted); see also
Opening Br. for Appellant 36; FHWA Br. 51-52. Thus, so
long as the FHWA has merely interpreted in a reasonable
fashion, rather than amended, those lighting standards, that
interpretation must itself be “consistent with customary use,”
whether or not it is precisely the interpretation that would have
27
been given to the standards at the time the FHWA and states
first agreed upon them. Cf. Ass’n of Am. R.Rs. v. Surface
Transp. Bd., 162 F.3d 101, 107 (D.C. Cir. 1998) (“Our
deference to an agency’s reasonable interpretation of its
governing statute ‘is a product both of an awareness of the
practical expertise which an agency normally develops, and of
a willingness to accord some measure of flexibility to such an
agency as it encounters new and unforeseen problems over
time.’” (quoting Int’l Bhd. of Teamsters v. Daniel, 439 U.S.
551, 566 n.20 (1979))).
We agree with the District Court’s conclusion that the
FHWA’s interpretation of the FSA lighting standards is not
one that “‘runs 180 degrees counter to the plain meaning of
the’ FSAs,” and that it therefore “construes, rather than
contradicts” the FSAs. Scenic II, 49 F. Supp. 3d at 62-63, 70
(quoting Nat’l Family Planning & Reprod. Health Ass’n v.
Sullivan, 979 F.2d 227, 235 (D.C. Cir. 1992)). Although it
might be possible to read the FSA lighting standards to prohibit
digital billboards, those standards do not foreclose other
interpretations, including the FHWA’s here. Because the
FHWA’s interpretation of the FSA lighting provision was
reasonable, the interpretation cannot be “contrary to customary
use.” Accordingly, Scenic’s claim that the Guidance violates
§ 706 must fail.
***
For the foregoing reasons, we affirm the District Court’s
grant of summary judgment as to Scenic’s § 706 claim, vacate
its judgment as to Scenic’s notice-and-comment claim, and
remand with instructions to dismiss Scenic’s
notice-and-comment claim.
So ordered.