Lundeen v. Mineta
| Decision Date | 08 May 2002 |
| Docket Number | No. 01-20605.,01-20605. |
| Citation | 291 F.3d 300 |
| Parties | Daniel N. LUNDEEN, Plaintiff-Appellant, v. Norman Y. MINETA, Secretary of the United States Department of Transportation; The Metropolitan Transit Authority of Harris County, Texas; and The City of Houston, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David B. Dickinson, Lundeen & Arismendi, Houston, TX, for Plaintiff-Appellant.
Gordon Speights Young and Keith Orlando Edward Wyatt, Asst. U.S. Attys., Houston, TX, for Mineta.
Frederick Dixon Junkin, Andrews & Kurth Mayor, Day, Caldwell & Keeton, Houston, TX, for Metropolitan Transit Authority of Harris County, TX.
Laura Jean Beckman, The City of Houston Legal Dept., Houston, TX, for City of Houston.
Appeal from the United States District Court for the Southern District of Texas.
Before WIENER and DENNIS, Circuit Judges, and LITTLE,* District Judge.
Plaintiff-Appellant Daniel N. Lundeen appeals from the jurisdictional dismissal of his suit against Defendants-Appellees Norman Y. Mineta, the Secretary of the United States Department of Transportation ("USDOT")1; the Metropolitan Transit Authority of Harris County, Texas ("Metro"); and the City of Houston ("Houston"). Agreeing with the district court's conclusion that it lacked subject-matter jurisdiction of this case, we affirm its dismissal of Lundeen's action.
This suit was brought by a bicyclist opposed to a federally funded highway project in which Metro and Houston seek to renovate the portion of Louisiana Street, a downtown thoroughfare, that runs from West Gray to Lamar. The renovation would construct five one-way traffic lanes, with no restrictions on the leftmost three lanes, a high-occupancy-vehicle ("HOV") restriction for lane four, and a buses-only restriction for the fifth or rightmost lane. Metro and Houston have secured USDOT grants to fund this reconstruction (hereafter, "the Louisiana Project").
Lundeen, a bicyclist who is a citizen and resident of Houston, sued Mineta, Metro, and Houston to block the Louisiana Project. He asked the district court to enjoin operation of bus lanes, HOV lanes, and Metro buses on Louisiana Street; to enjoin Houston from enforcing its ordinance against bikes in bus lanes; and to declare that ordinance void and the Louisiana Project, as well as the operation of Metro buses as envisioned in that Project, ineligible for federal transportation funding. Lundeen's pleadings allege that because he is a bicyclist, his personal safety on and enjoyment of Louisiana Street are threatened by the Project as envisioned. He claims that he objected to the design of the Project, only to be brushed off by both Metro and USDOT. On appeal, he states that the design and operation of the Louisiana Project "would threaten him with unreasonable risk of personal injury and death" and that the design is "deliberately calculated by Metro to discourage any use of [Louisiana Street] by bicycle [sic]."
Mineta and Metro moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim on which relief could be granted. The district court granted their jurisdictional motions and dismissed the action. Lundeen timely filed a notice of appeal.
We review a dismissal for lack of subject-matter jurisdiction de novo.2 Our review here is tripartite. We begin with Lundeen's claim against Secretary Mineta.
As we have previously noted,
The principle of sovereign immunity protects the federal government from suit except insofar as that immunity is waived. A waiver must be unequivocally expressed in statutory text and will not be implied. See Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (citations omitted).... Numerous Supreme Court opinions hold that courts should construe statutes against waiver unless Congress has explicitly provided for it.3
"Consequently, no suit may be maintained against the United States unless the suit is brought in exact compliance with the terms of a statute under which the sovereign has consented to be sued."4 The burden is on Lundeen to show such consent, because he is the party asserting federal jurisdiction.5 He has pointed us to no waiver in TEA-21 itself, its predecessors, or USDOT's authorizing legislation. We therefore confine our analysis of whether the district court had jurisdiction of Lundeen's action against Mineta to the single statute that Lundeen identifies as permitting him to sue the government: the Administrative Procedure Act ("APA").6
Lundeen's basic argument assumes that, under the APA's scheme, USDOT's funding of the Louisiana Project is an "agency action." Mineta does not contest this assumption, perhaps because the term's definition is very broad and encompasses a funding decision.7
The parties sharply disagree, however, over whether judicial review is statutorily precluded. The APA generally provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."8 In granting this entitlement, the statute clearly waives the official immunity of officers of the United States.9 This certainly qualifies as a waiver of sovereign immunity. The APA expresses a broad exception, however, to its general rule: courts may not review an agency action when the "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law."10 Mineta urges that the first exception applies.11 If it does, its statutory preclusion of judicial review would be jurisdictional in effect, requiring dismissal.12 If neither exception applies, subject-matter jurisdiction exists, although it does so under the general federal-question statute, not the APA proper, which "does not create an independent grant of jurisdiction to bring suit."13
Our analysis under the first exception begins with the "strong presumption" that Congress intends that the federal courts review agency action.14 The agency can rebut this presumption by pointing to "specific language or specific legislative history that is a reliable indicator of congressional intent."15 The standard is whether congressional intent to preclude judicial review is "fairly discernible in the statutory scheme."16 In determining whether this is so, we cast a broad evidentiary net: We look to the statute's language, structure, and legislative history, and also to the nature of the administrative action authorized.17
The key provisions at issue entered the statute books in 1998 as parts of the Transportation Equity Act for the 21st Century ("TEA-21").18 In TEA-21, Congress re-authorized federal highway and transit funding.
TEA-21 amended the United States Code to add special language favoring bicyclists (23 U.S.C. § 217(g)) and to rewrite a highly reticulated transportation-planning scheme that explicitly precludes judicial review (23 U.S.C. §§ 134 and 135). How these provisions interrelate is a matter of first impression.
Sections 1203 and 1204 of TEA-21 amended §§ 134 and 135 to require that metropolitan regions (acting through metropolitan planning organizations) and states, respectively, develop transportation plans that establish priorities of projects for federal funding. Sections 134 and 135 delineate the scope of planning and provide a list of planning factors, several of which are relevant to this case; but they also protect that planning, and the planners' failure to consider a factor, from judicial review. The relevant language of section 134, the metropolitan-planning provision, states:
(f) SCOPE OF PLANNING PROCESS. —
(1) IN GENERAL. — The metropolitan transportation planning process for a metropolitan area under this section shall provide for consideration of projects and strategies that will —
. . .
(B) increase the safety and security of the transportation system for motorized and nonmotorized users;
(C) increase the accessibility and mobility options available to people and for freight;
(D) protect and enhance the environment, promote energy conservation, and improve quality of life.
. . .
(2) FAILURE TO CONSIDER FACTORS. — The failure to consider any factor specified in paragraph (1) shall not be reviewable by any court under this title, subchapter II of chapter 5 of title 5, or chapter 7 of title 5 in any matter affecting a transportation plan, a transportation improvement plan, a project or strategy, or the certification of a planning process.19
Section 135's list of state planning factors and prohibition on judicial review of state planning are identical to this quoted language.20 If these provisions were all that we had to construe, Lundeen would have no case.
Lundeen points to 23 U.S.C. § 217(g), however, which was amended by section 1202(a)(3) of TEA-21 to read, in pertinent part:
§ 217. BICYCLE TRANSPORTATION AND PEDESTRIAN WALKWAYS.
. . .
(g) PLANNING AND DESIGN. —
(1) IN GENERAL. — Bicyclists and pedestrians shall be given due consideration in the comprehensive transportation plans developed by each metropolitan planning organization and State in accordance with sections 134 and 135, respectively. Bicycle transportation facilities and pedestrian walkways shall be considered, where appropriate, in conjunction with all new construction and reconstruction of transportation facilities, except where bicycle and pedestrian uses are not permitted.
(2) SAFETY CONSIDERATIONS. — Transportation plans and projects shall provide due consideration for safety and contiguous routes for bicyclists and pedestrians.. . .21
Lundeen notes that, even though the first sentence of § 217(g)(1) refers back to §§ 134 and 135, which explicitly preclude judicial review, the second sentence of § 217(g)(1) does not. Neither does § 217(g)(2). He...
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