Citizens Advisory Committee on Private Prisons, Inc. v. UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF PRISONS On Appeal from the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 01-3772
CITIZENS ADVISORY COMMITTEE ON PRIVATE PRISONS, INC.,
Appellant
v.
UNITED STATES DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF PRISONS
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Civil No. 99-cv-00112
District Judge: Hon. D. Brooks Smith, Chief Judge
Argued: April 8, 2002
BEFORE: McKEE, BARRY & ALARCON
(Opinion Filed: April 25, 2002)
William T. Jones, Esq. (Argued)
Robert A. Preate, Esq.
Levy & Preate
507 Linden Street
Scranton Electric Building
Scranton, PA 18503
Attorneys for Appellant
Stephanie Tai, Esq. (Argued)
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 23795
L’Enfant Plaza Station
Washington, D.C. 20026
Attorney for Appellee
OPINION OF THE COURT
McKee Circuit Judge.
The Citizens Advisory Committee on Private Prisons, Inc. ("CACOPP"), appeals
the district court’s grant of summary judgment against CACCOPP and in favor of the
United States Department of Justice, Federal Bureau of Prisons. For the reasons that
follow we will affirm.
The district court had jurisdiction pursuant to 28 U.S.C. 1331 and 1361, and
was empowered to issue the requested declaratory judgment under 28 U.S.C. 2201-
2202. We have jurisdiction under 28 U.S.C. 1291 and 1294.
Plaintiff filed this action under The National Environmental Policy Act ("NEPA"),
42 U.S.C. 4321-4327 (1994), in an effort to enjoin construction of a new prison based
upon plaintiff’s assertion that the defendants violated the requirements of NEPA in
awarding the contract for that construction. Our review of the district court’s summary
judgment rulings is plenary. Huang v. BP Amoco Corp. 271 F.3d 560, 564 (3d Cir.
2001). Under the Administrative Procedure Act ("APA"), an agency action can be set
aside only if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in

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accordance with law." 5 U. S. C. 706(2)(A). More specifically, the arbitrary and
capricious standard of review is applied to an agency’s decision "to not prepare an EIS
based upon a FONSI." Society Hill Towers Owners’ Association v. Rendell, 210 F.3d
168, 179 (3d Cir. 2000).
The Honorable D. Brooks Smith, Chief Judge of the United States District Court for
the Western District of Pennsylvania, has already set forth the factual background of this
lawsuit in his lucid and thoughtful Memorandum Opinion and Order in which he explains
his reasons for denying plaintiff the relief it seeks. See Citizens Advisory Committee on
Private Prisons, Inc. v. United States Department of Justice, Federal Bureau of Prisons, No.
99-112J, 2001 WL 1841239 (W.D. Pa. Aug. 7, 2001). Inasmuch as we can add little to the
analysis set forth by Chief Judge Brooks in that Memorandum Opinion, we will affirm
substantially for the reasons set forth therein without further elaboration.
TO THE CLERK:
Please file the foregoing opinion.
By the Court
/s/ Theodore A. McKee
Circuit Judge

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