November 7, 2016
from the United States District Court for the Eastern
District of Wisconsin. No. 11-C-0545 - Lynn Adelman, Judge.
Easterbrook and Williams, Circuit Judges, and Feinerman,
District Judge. [*]
EASTERBROOK, CIRCUIT JUDGE.
the State of Wisconsin proposed to use federal highway funds
to widen Wisconsin Route 23 to four lanes between Fond du Lac
and Sheboygan, the U.S. Department of Transportation (USDOT)
issued an environmental impact statement evaluating the
potential effects of the project. After USDOT made a
"record of decision" permitting the use of federal
funds, a group opposed to the project filed this suit under
the Administrative Procedure Act and asked the district court
to find the statement inadequate and enjoin the project. The
court denied the request for an injunction-after all,
Wisconsin can proceed using its own money whether or not a
federal agency has satisfied the requirements for a federal
contribution-but set aside the record of decision after
concluding that the portion of the statement projecting
traffic loads in 2035 had not adequately disclosed all
assumptions and other ingredients of the traffic-forecasting
model. 2015 U.S. Dist. Lexis 67176 (E.D. Wis. May 22, 2015).
then issued a revised environmental impact statement with
additional details about how the traffic estimates had been
generated. The district court concluded, however, that even
as revised the information remains inadequate and reiterated
the order vacating USDOT's record of decision. 2016 U.S.
Dist. Lexis 57413 (E.D. Wis. Apr. 29, 2016). The judge stated
that plaintiff is entitled to a declaratory judgment but
neglected to issue one. We do not see what sort of
declaratory relief would be appropriate, however, for the
central question in the case was resolved by the order
setting aside the record of decision. That order is a final
decision appealable under 28 U.S.C. §1291, and it has
only appellants are the Wisconsin Department of
Transportation and a state employee (collectively Wisconsin).
So we have a mismatch between the relief and the appellant.
The only relief is directed against USDOT, which has not
appealed. The only appellants remain free to continue the
highway project, though on the state's dime.
briefs filed in this court ignored the fact that USDOT has
not filed a notice of appeal. For its part, USDOT ignored the
state's appeal and did not file papers of any kind, even
though every party that is not an appellant becomes an
appellee. After oral argument we issued an order directing
all parties, including USDOT, to file supplemental memoranda
to discuss the significance of the fact that USDOT elected
not to appeal.
maintains that its decision not to appeal forecloses any
other challenge to the district court's decision, and we
agree. The only relief ordered by the district court is the
cancellation of USDOT's record of decision, the document
that allows federal funding of this project. That was the
only possible relief, because the National Environmental
Policy Act, on which the suit rests, applies only to the
national government. The critical language provides:
"all agencies of the Federal Government shall ...
include in every recommendation or report on proposals for
legislation and other major Federal actions significantly
affecting the quality of the human environment, a detailed
statement by the responsible official on" environmental
effects. 42 U.S.C. §4332(2)(C). This statute does not
impose any duties on states, which is why Wisconsin remains
free to widen the highway using its own resources.
the federal agency has not appealed, it cannot distribute
funds to Wisconsin for the Route 23 project until it issues a
new environmental impact statement. Wisconsin cannot seek
relief against a judgment that does not bind it. It would be
nothing but an advisory opinion for a court of appeals to
discuss the adequacy of this environmental impact statement,
when that discussion cannot change the effect of the district
court's judgment. This is why decision after decision, by
the Supreme Court and this circuit, holds that, when the
public agency with duties under a judgment elects not to
appeal, a different litigant cannot step into the
agency's shoes and carry on. See, e.g., Hollingsworth
v. Perry, 133 S.Ct. 2652 (2013); Diamond v.
Charles, 476 U.S. 54 (1986); Princeton University v.
Schmid, 455 U.S. 100 (1982); Kendall-Jackson Winery,
Ltd. v. Branson, 212 F.3d 995 (7th Cir. 2000).
suggested in Kendall-Jackson that there might be an
exception to this principle if the decision not to appeal
could itself be the subject of judicial review. Suppose an
agency had a statutory duty to appeal but failed to live up
to its legal obligations. Or suppose that USDOT had a
statutory duty to pay for state highway projects on request
and to do whatever it took (including litigation) to provide
those funds. Then a court of appeals might be able to proceed
in two steps: review the agency's decision not to appeal,
and if that decision was arbitrary and capricious proceed to
the merits. But Wisconsin does not contend that USDOT has a
statutory duty to fund the Route 23 project, to prepare a
better environmental impact statement, or to appeal an
adverse decision. If USDOT had said something like "we
will not fund this project because we do not think the
traffic projection sufficiently reliable, " Wisconsin
would not have had any legal redress. But that's
essentially what USDOT did conclude when deciding not to
insists that it has standing because it is a "lead
agency" and cooperated with USDOT to produce and defend
the environmental impact statement. See 23 U.S.C. §139;
23 C.F.R. §771.109(c)(1). But the question is not
whether the state suffers insult from the district
court's evaluation of its handiwork or injury from the
judgment-it does, because the district court's judgment
costs it a lot of money (unless USDOT comes up with a new
environmental impact statement). The question is whether that
injury is redressable on appeal.
has three components: injury, causation, and redressability.
See, e.g., Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). Having chosen not to appeal, USDOT remains
bound by the judgment no matter what happens in this court. A
timely appeal in civil litigation is a jurisdictional
requirement. Bowles v. Russell,551 U.S. 205 (2007).
A court of appeals cannot modify a judgment to make it more
favorable to a party that did not file a notice of appeal.
See, e.g., Greenlaw v. United States,554 U.S. 237
(2008). This court therefore lacks authority to disturb the
order against USDOT whether or not we are persuaded by the
state's arguments. As long as USDOT remains bound,
nothing this court says ...