Town of Portsmouth v. Lewis

• Decision Date: 10 February 2016
• Docket Number: No. 15–1052.,15–1052.
• Citation: 813 F.3d 54
• Parties: TOWN OF PORTSMOUTH, RHODE ISLAND, Plaintiff, Appellant, v. Michael P. LEWIS in his official capacity as Director of the Rhode Island Department of Transportation, Rhode Island Department of Transportation, Daniel J. Berman in his official capacity as Division Administrator of the Federal Highway Administration, Victor Mendez in his official capacity as Administrator of the Federal Highway Administration, Federal Highway Administration, Buddy Croft in his official capacity as Executive Director of the Rhode Island Turnpike and Bridge Authority, and Rhode Island Turnpike and Bridge Authority, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

813 F.3d 54

TOWN OF PORTSMOUTH, RHODE ISLAND, Plaintiff, Appellant,

v.Michael P. LEWIS in his official capacity as Director of the Rhode Island Department of Transportation, Rhode Island Department of Transportation, Daniel J. Berman in his official capacity as Division Administrator of the Federal Highway Administration, Victor Mendez in his official capacity as Administrator of the Federal Highway Administration, Federal Highway Administration, Buddy Croft in his official capacity as Executive Director of the Rhode Island Turnpike and Bridge Authority, and Rhode Island Turnpike and Bridge Authority, Defendants, Appellees.

No. 15–1052.

United States Court of Appeals, First Circuit.

Feb. 10, 2016.

Kevin P. Gavin, with whom Law Office of Kevin P. Gavin, Terence J. Tierney, and Law Office of Terence J. Tierney were on brief, for appellant.

Jeffrey H. Gladstone, with whom Robert K. Taylor and Partridge Snow & Hahn LLP were on brief, for appellees Michael P. Lewis and Rhode Island Department of Transportation.

Richard B. Myrus, Assistant U.S. Attorney, and Peter F. Neronha, United States Attorney, on brief for appellees Daniel J. Berman, Victor Menendez, and Federal Highway Administration.

William E. O'Gara, Brian J. Lamoreux, Rebecca M. Murphy, and Pannone Lopes Devereaux & West LLC on brief for appellees Rhode Island Turnpike and Bridge Authority and Buddy Croft.

Before HOWARD, Chief Judge, SELYA and THOMPSON, Circuit Judges.

HOWARD

, Chief Judge.

The Town of Portsmouth, Rhode Island challenges a district court order dismissing its claims against federal and state transportation agencies and officers for collecting tolls on the Sakonnet River Bridge in violation of the anti-tolling provision of the Federal–Aid Highway Act (FAHA), 23 U.S.C. § 301

, and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 –4347. After the Town filed this suit in federal court, the Rhode Island legislature repealed the tolls. Consequently, the district court denied on mootness grounds the Town's requests for injunction, declaratory judgment, and monetary relief, and dismissed the Town's complaint. We agree with the district court that this legislative repeal rendered moot the Town's claims for injunctive and declaratory relief. We also conclude that the Town did not sufficiently allege or preserve a restitution claim. Even were we to excuse this insufficiency, however, the restitution claim would still fail because the Town lacks a right of action. Accordingly, we affirm the district court's dismissal of the complaint.

I. Background

Since 1956, the Sakonnet River Bridge has spanned the Sakonnet River, connecting the communities of Portsmouth and Tiverton, Rhode Island. In 1999, the Rhode Island Department of Transportation (the state DOT) and the Federal Highway Administration (the FHWA) considered options for restoring or replacing the aging bridge. In light of opposition to bridge tolls by the public and Rhode Island's governor, the state DOT did not include tolls as a means of financing the bridge in its Final Environmental Impact Statement, and the FHWA affirmatively stated in its Record of Decision that tolls were not being considered.

Eventually, federal funds were approved, and a new toll-free bridge opened in September 2012. Later that year, however, the Rhode Island General Assembly enacted legislation allowing the Rhode Island Turnpike and Bridge Authority (the Authority) to impose tolls on the bridge. The following year, the state DOT issued a reevaluation of its earlier Environmental Impact Statement to account for the new tolls. The FHWA also issued a Revised Record of Decision approving the tolls.

In April 2013, the Town filed a two-count complaint against the state and federal agencies (the state DOT, the Authority, and the FHWA) in federal district court, seeking injunctive and declaratory relief, attorney fees, and unspecified general relief. One count alleged that the tolls violated the anti-tolling provision of the Federal–Aid Highway Act, 23 U.S.C. § 301

, which generally prohibits tolls on federally funded bridges. The other count claimed that the defendants had failed to comply with NEPA's procedures in evaluating the impact of the tolls.

In June 2013, the district court heard and denied the Town's motion for a preliminary injunction. In August, the Authority began to collect tolls on the bridge. In November, the Town filed a motion for summary judgment on its anti-tolling claim. Before the court decided the motion, however, the Rhode Island General Assembly enacted a prohibition on toll collection after June 2014. In July 2014, the Town filed a motion seeking restitution of previously collected tolls. In its motion, the Town stated that its restitution claim was contingent upon the district court granting its earlier summary judgment motion. The defendants successfully moved to dismiss all claims as having been rendered moot by the new statute. See Town of Portsmouth v. Lewis, 62 F.Supp.3d 233 (D.R.I.2014)

. This timely appeal followed.

II. Mootness

Because resolution of the mootness issue may affect our jurisdiction, we decide it before reaching the merits. Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops (ACLUM ), 705 F.3d 44, 52 (1st Cir.2013)

. "[A]n actual controversy must exist at all stages of the review, not merely at the time the complaint is filed." Id. "[A] case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Another way of putting this is that a case is moot when the court cannot give any effectual relief to the potentially prevailing party." Id. (internal quotation marks and citations omitted). Absent factual findings that bear on the issue, we review the district court's dismissal for mootness de novo. Seeid.

A. Declaratory and Injunctive Relief

Inescapably, the Town's claim for injunctive relief is moot because the state has repealed the tolls, so there is no ongoing conduct to enjoin. The Town tries to avoid this conclusion by arguing that what it seeks to enjoin is possible future tolling pursuant to the FHWA's approval of tolling in its 2013 Revised Record of Decision.

But we generally consider the law as it exists at the time of our review, see Sheehan v. City of Gloucester, 321 F.3d 21, 24 (1st Cir.2003)

(quoting Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711–12, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974) ), not as it might speculatively exist in the future. Thus, even if we were permitted to issue an advisory opinion on hypothetical conduct, which we are not, we would decline to do so. Nothing prevents the Town from seeking an injunction if and when the state should begin to collect tolls anew.

The Town's claim for declaratory relief fails for similar reasons. In order for a claim for declaratory relief to survive a mootness challenge, the Town must "show that there is a substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." ACLUM, 705 F.3d at 54

(internal formatting omitted). Because the state legislature has prohibited toll collection, "[t]he controversy here is at this point neither immediate nor real." Id. As with the claim for injunctive relief, we decline to issue a declaration about the legality of hypothetical tolls.

In an attempt to revive these moot claims, the Town relies on the "voluntary cessation" exception. This exception can apply when a "defendant voluntar[ily] ceases the challenged practice" in order to moot the plaintiff's case, id., and there exists "a reasonable expectation that the challenged conduct will be repeated following dismissal of the case," id. at 56

. The exception's purpose is to deter a "manipulative litigant [from] immunizing itself from suit indefinitely, altering its behavior long enough to secure a dismissal and then reinstating it immediately after." Id. at 54–55. In light of this purpose, the exception ordinarily does not apply where the voluntary cessation occurred for reasons unrelated to the litigation. See id. at 55.

Here, there is no basis upon which to conclude that the state legislature repealed the tolls in order to make the present litigation moot, so the exception does not apply.¹ Generally, we presume that a state legislature enacts laws in good faith, see, e.g., Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995)

, not with the improper motive of mooting pending litigation. See Lamar Adver. of Penn, LLC v. Town of Orchard Park, N.Y., 356 F.3d 365, 376 (2d Cir.2004) ; 13C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3533.6 n.41 (3d ed.2008 & Supp.2015) (collecting cases). Indeed, we note that although the Supreme Court has not hesitated to invoke the voluntary cessation exception when considering the conduct of private, municipal, and administrative defendants, it has not applied the exception to state legislatures. Rather, it has consistently and summarily held that a new state statute moots a case, without engaging in further inquiry. See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 582–84, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) ; Kremens v. Bartley, 431 U.S. 119, 129, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977) ; Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969) ; Berry v. Davis, 242 U.S. 468, 470, 37 S.Ct. 208, 61 L.Ed. 441 (1917).

Undaunted, the Town argues that the exception applies here because the state's governor has proposed new tolls and the state senate passed a bill reauthorizing tolls, S. 997 Substitute A, 2015 Reg. Sess. (R.I. 2015).² This argument also fails, however, because even were it theoretically possible to overcome the presumption that the legislature acted in good faith, a proposition that we doubt, the factual record is insufficient to that task. In the first place, the fact that the senate and governor have already acted in favor of new tolls—prior to the resolution of this appeal—suggests that their actions...