UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WEST LANGLEY CIVIC ASSOCIATION, 

Plaintiff-Appellant,

v.  No. 00-1875

FEDERAL HIGHWAY ADMINISTRATION,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-99-1651-A)

Argued: January 23, 2001

Decided: March 30, 2001

Before WIDENER and TRAXLER, Circuit Judges, and Malcolm J.

HOWARD, United States District Judge for the Eastern District of

North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Eugene E. Threadgill, McLean, Virginia, for Appellant.

Robert Joseph Black, FEDERAL HIGHWAY ADMINISTRATION,

Washington, D.C., for Appellee. ON BRIEF: Helen F. Fahey, United

States Attorney, Jeri Kaylene Somers, Assistant United States Attorney, Alexandria, Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

This case involves a battle for a noise barrier to protect nearby residents from the constant noise generated by the huge volume of traffic

carried on Interstate 495, the "Capital Beltway" encircling Washington, D.C. Appellant West Langley Civic Association (the "Association") is an association of homeowners who live in the West Langley

neighborhood of McLean, Virginia, an area that abuts the Beltway.

The Association appeals from the grant of summary judgment in

favor of the Federal Highway Administration ("FHWA"). We affirm.

I.

Before approval of a "federal-aid" highway project,1 the environmental effects of the project (including noise pollution) must be fully

considered, see 23 U.S.C.A. § 109(h) (West 1990), and adequate measures must be taken to ensure compliance with federal noise level

standards, see 23 U.S.C.A. § 109(i) (West 1990). When the Beltway

was widened to eight lanes in the 1970s, FHWA regulations generally

required the use of noise abatement measures, such as concrete walls

serving as noise barriers, unless an exception was granted. See 23

C.F.R. §§ 772.13 & 772.15 (1977); 23 C.F.R. §§ 772.3 & 772.4

(1973). During the widening of the Beltway, the agency now known

as the Virginia Department of Transportation ("VDOT") sought and

received an exception that excused it from building a noise barrier

between the Beltway and West Langley. 

West Langley residents complained about the noise from the

expanded Beltway and requested that VDOT construct noise barriers.

1Broadly speaking, a "federal-aid highway" is a highway eligible for

federal assistance under the Federal-Aid Highway Act. See 23 U.S.C.A.

§ 101(a)(5) (West Supp. 2000). 

2 WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.
VDOT refused, based on its policy not to "retrofit" existing highways

with noise barriers. West Langley residents then began a twenty-year

campaign for the barriers, repeatedly seeking the aid of state and federal legislators, commissioning a survey in 1988 that showed a substantial increase in the noise level from the Beltway, and even

requesting in 1991 that FHWA withhold highway funding from

VDOT until it built a noise barrier. (The FHWA declined, noting that

could not force a state agency to undertake any specific course of

action.) In 1995, the Association sued the FHWA in connection with

its granting of the exception authorizing VDOT to widen the Beltway

without constructing a noise barrier in the West Langley area. That

action was dismissed on statute of limitation grounds. 

Things began looking up for the Association in 1999, when the

Virginia General Assembly passed a bill requiring VDOT to construct

a noise barrier at West Langley with federal funds. The Association’s

happiness, however, was short-lived. By the time the Virginia bill was

passed, there had been a sea change in the availability of federal funds

for projects like the West Langley noise barrier. 

Noise abatement projects fall into two categories. Type I projects

are those associated with construction of a new federal or federal-aid

highway or an alteration of an existing highway, such as the addition

of new lanes. See 23 C.F.R. § 772.5(h) (2000). Type II projects are

those for noise abatement on existing highways. See 23 C.F.R.

§ 772.5(i) (2000). While noise abatement is generally required with

Type I projects, Type II projects are not mandatory. See 23 C.F.R.

§ 772.7 (2000). Because no noise barrier was built at West Langley

when the Beltway was widened, the barrier sought by the Association

is a Type II project. 

Prior to 1995, federal-aid funding was available for Type II noise

abatement projects proposed by state agencies, see, e.g., 23 C.F.R.

§ 772.9(c) (1977 ed.), and by 1992 seventeen states had constructed

Type II noise abatement projects, see 61 Fed. Reg. 45,319, 45,320

(Aug. 29, 1996). In 1995, however, Congress passed the National

Highway System Designation Act, which, among other things,

severely limited the availability of federal aid for Type II projects:

(1) GENERAL RULE.—No funds made available out of

the Highway Trust Fund may be used to construct Type II

WEST LANGLEY v. FEDERAL HIGHWAY ADMIN. 3
noise barriers (as defined by section 772.5(i) of title 23,

Code of Federal Regulations) pursuant to subsections (h)

and (i) of section 109 of title 23, United States Code, if such

barriers were not part of a project approved by the Secretary

before the date of the enactment of this Act. 

(2) EXCEPTIONS.—Paragraph (1) shall not apply to

construction of Type II noise barriers along lands that were

developed or were under substantial construction before

approval of the acquisition of the rights-of-ways for, or construction of, the existing highway. 

See National Highway System Designation Act of 1995 § 339(b),

Pub. L. No. 104-59, 109 Stat. 568, 605 (1995).2 In response to the

Act, the FHWA amended its regulations to provide that:

For Type II projects, noise abatement measures will only

be approved for projects that were approved before November 28, 1995, or are proposed along lands where land development or substantial construction predated the existence of

any highway. The granting of a building permit, filing of a

plat plan, or a similar action must have occurred prior to

right-of-way acquisition or construction approval for the

original highway. Noise abatement measures will not be

approved at locations where such measures were previously

determined not to be reasonable and feasible for a Type I

project. 

23 C.F.R. § 772.13(b) (2000) (emphasis added). 

This regulation was in effect when federal funds were sought for

the state-approved West Langley noise barrier. The FHWA refused

the funding request. According to the FHWA, VDOT was granted an

exception to the Type I noise barrier requirement at the time of the

Beltway expansion in the 1970s because the barrier was determined

not to be reasonable. The FHWA therefore concluded that regulation

2According to the Association, the change was a reaction to a television expos characterizing as wasteful the use of taxpayers’ money to

build noise barriers. 

4 WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.
772.13(b) prohibited the use of federal funds for the construction of

the West Langley noise barrier. After the FHWA denied the request

for federal-aid funds, the Association filed this action in district court.

The Association challenged the first portion of the regulation,

which allows funding for Type II projects only if a development was

under construction, a building permit obtained, a plat plan filed, or

other similar action had occurred "prior to right-of-way acquisition or

construction approval for the original highway." 23 C.F.R.

§ 772.13(b). According to the Association, the FHWA exceeded its

statutory authority when promulgating this portion of the regulation

because the regulation narrowed the projects for which federal funds

could be used by limiting availability to areas where development was

begun prior to the right-of-way acquisition or construction of the

"original highway," while the National Highway System Designation

Act referred only to the "existing highway." 

The Association also challenged the final sentence of regulation

772.13(b), which states that funding will not be available for Type II

projects at locations where Type I noise abatement had previously

been determined to be not reasonable or feasible. According to the

Association, that portion of the regulation is impermissibly retroactive, at least as applied to West Langley, because the decision to deny

funds is triggered by an event—the prior determination of the reasonableness and feasibility of Type I noise abatement measures—that

happened more than twenty years before the regulation was enacted.

The district court granted summary judgment to the FHWA. The

court first concluded that the FHWA’s interpretation of the undefined

statutory phrase "existing highway" to mean "original highway" was

not unreasonable and that the regulation was therefore valid. The

court also ruled that the FHWA’s decision to deny funding for the

requested noise barrier "had a reasonable basis in the record" and

therefore could not overturned. J.A. 202. The district court did not

specifically address the Association’s retroactivity argument. 

II.

Although the Association questioned in its brief the FHWA’s interpretation of "existing highway" as meaning "original highway," it

WEST LANGLEY v. FEDERAL HIGHWAY ADMIN. 5
abandoned this claim during oral argument. Instead, the Association

focused on its claim that the final sentence of regulation 772.13(b) is

an impermissible retroactive regulation. Questions about the validity

of a regulation are reviewed de novo, see CSX Corp. v. United States,

124 F.3d 643, 646 (4th Cir. 1997), but we give substantial deference

to an agency’s interpretation of its own regulations, unless that interpretation is "plainly erroneous or inconsistent with the regulations,"

Zeneca, Inc. v. Shalala, 213 F.3d 161, 168 (4th Cir. 2000) (internal

quotation marks and alteration omitted). 

"Retroactivity is not favored in the law . . . [and] congressional

enactments and administrative rules will not be construed to have

retroactive effect unless their language requires this result." Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). We conclude

that the challenged portion of regulation 772.13 is not retroactive. 

A law or regulation operates retroactively if it "impair[s] rights a

party possessed when he acted, increase[s] a party’s liability for past

conduct, or impose[s] new duties with respect to transactions already

completed." Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).

A regulation "does not operate ‘retrospectively’ merely because it is

applied in a case arising from conduct antedating [its] enactment, or

upsets expectations based in prior law." Id. at 269 (internal citation

omitted). Nor is a regulation retroactive "because it draws upon antecedent facts for its operation." Id. at 270 n.24 (internal quotation

marks omitted)); see also Reynolds v. United States, 292 U.S. 443,

449 (1934) ("A statute is not rendered retroactive merely because the

facts and requisites upon which its subsequent action depends . . . are

drawn from a time antecedent to the enactment."). 

In this case, the application of regulation 772.13 is triggered by

events occurring after its effective date—the construction and request

for funding of a Type II noise barrier. See McAndrews v. Fleet Bank

of Mass., N.A., 989 F.2d 13, 16 (1st Cir. 1993) ("The determination

of whether a statute’s application in a particular situation is prospective or retroactive depends upon whether the conduct that allegedly

triggers the statute’s application occurs before or after the law’s effective date."). While the availability of funds depends in part upon an

event that occurred years before (the determination that a Type I barrier was not reasonable or feasible), this reference to antecedent

6 WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.
events simply does not make the regulation an impermissible retroactive one. See Landgraf, 511 U.S. at 280 n.24; McAndrews, 989 F.2d

at 16 ("[A] statute does not operate retroactively simply because its

application requires some reference to antecedent facts."). Because

the regulation governs the availability of federal funds for Type II

noise abatement projects begun after the effective date of the regulation, the Association’s retroactivity argument fails. 

To the extent that the Association’s brief can be read as challenging the substance of the FHWA’s conclusion that a Type I barrier at

the West Langley location had previously been determined to be

unreasonable, that argument likewise fails, because the FHWA did

not act arbitrarily or capriciously when making that determination.

See 5 U.S.C.A. § 706(2)(A) (West 1996) (stating that an agency’s

action must be upheld unless the action was "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law."). 

When the Beltway was widened in the 1970s, the FHWA granted

VDOT an exception from the noise abatement requirements after

VDOT’s investigation revealed that most West Langley residents

favored the use of an earth berm with supplemental planting rather

than a noise barrier, even though the berm would be substantially less

effective in reducing the noise from the Beltway. According to

VDOT’s survey of the residents, they preferred the berm because it

would leave intact the substantial stand of trees that provided a visual

screen from the Beltway, while construction of a noise wall would

have required removal of many of the trees. VDOT therefore based

its exception request on the residents’ lack of support for the construction of a noise barrier. 

The Association now contends that VDOT misrepresented the

results of the survey to the FHWA and that most of the residents in

fact wanted a noise barrier to be built. This argument, however, is

nothing more than an attempt to litigate the propriety of the FHWA’s

granting of the exception, an attempt that is barred under principles

of res judicata by the dismissal of the Association’s 1995 lawsuit

against the FHWA. See First Union Commercial Corp. v. Nelson,

Mullins, Riley & Scarborough (In re Varat Enters., Inc.), 81 F.3d

1310, 1314-15 (4th Cir. 1996) ("Under res judicata principles, a prior

judgment between the same parties can preclude subsequent litigation

WEST LANGLEY v. FEDERAL HIGHWAY ADMIN. 7
on those matters actually and necessarily resolved in the first adjudication. . . . [Res judicata] bars litigation not only of every matter actually adjudicated in the earlier case, but also of every claim that might

have been presented." (citations omitted)); Shoup v. Bell & Howell

Co., 872 F.2d 1178, 1180-81 (4th Cir. 1989) (holding that dismissal

based on the expiration of the statute of limitations is a decision on

the merits for purposes of res judicata). Accepting as we must that the

FHWA properly granted VDOT an exception from the requirement to

build a Type I noise abatement project, we cannot say that the FHWA

made a clear error of judgment or disregarded the controlling law

when it relied on the prior exception to deny funding under regulation

772.13. See Maryland Dep’t of Human Resources v. USDA, 976 F.2d

1462, 1475 (4th Cir. 1992) ("In determining whether agency action

[violates § 706(2)(A) of the APA] . . ., we perform only the limited,

albeit important, task of reviewing agency action to determine

whether the agency conformed with controlling statutes, and whether

the agency has committed a clear error of judgment." (internal quotation marks omitted)).

III.

We conclude that regulation 772.13 is not retroactive and that the

FHWA properly applied the regulation to deny funding for the West

Langley noise barrier. Accordingly, the district court’s grant of summary judgment in favor of the FHWA is hereby affirmed.

AFFIRMED

8 WEST LANGLEY v. FEDERAL HIGHWAY ADMIN.