at issue in plaintiffs' motion. Because it lacks jurisdiction to
act, this Court will deny plaintiffs' motion without prejudice.
The Court, however, is able to provide plaintiffs with an
indication of how it would rule on their motion if it were to
regain jurisdiction over this case. See Greater Boston
Television Corp. v. FCC, 463 F.2d 268, 280 n. 22 (D.C.Cir. 1971)
("This court has adopted the rule that the motion to provide
relief may be considered by the district court while the appeal
is pending; if that court indicates that it will grant relief the
appellant should move in the appellate court for a remand in
order that relief may be granted"); Smith v. Pollin,
194 F.2d 349, 350 (D.C.Cir. 1952) (same). The Court therefore will analyze
plaintiffs' motion to provide plaintiffs with an indication of
how it will rule should they request a remand from the court of
B. Plaintiffs' Motion
Plaintiffs first argue that the Court should amend its judgment
under Rule 60(b)(5) of the Federal Rules of Civil Procedure
because "it is no longer equitable that the judgment should have
prospective application." Rule 60(b)(5), Fed.R.Civ.P. Plaintiffs
contend that the recent order issued by the court of appeals
suggests that its second appeal may be dismissed on
jurisdictional grounds, denying them substantive review of the
Court's listing decision for the second time. Plaintiffs argue
that it is no longer equitable to force plaintiffs to await the
defendants' compliance with the remand before gaining appellate
Plaintiffs, however, have not demonstrated any change in
circumstances that would justify the modification of the Court's
judgment. Rule 60(b)(5) is "based on the historical power of a
court to modify its decree in light of changed circumstances." 11
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2863 at 336 (1995). See Agostini v.
Felton, 521 U.S. 203, 215, 117 S.Ct. 1997, 138 L.Ed.2d 391
(1997); Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367,
383, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); United States v.
Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932).
Plaintiffs have not argued that there has been any change in the
law or facts that would make it inequitable to enforce the
Court's judgment. They have argued only that the effect of the
judgment would preclude appellate review. This can hardly be said
to be unexpected or unforeseen; plaintiffs themselves sought the
relief granted in the Court's Opinion of March 31, 1999. The
Court therefore would deny plaintiffs' motion to amend the
judgment if it had jurisdiction to do so.
Failing the amendment of the Court's judgment, plaintiffs argue
that the Court should allow them to amend their complaint under
Rule 15(a) of the Federal Rules of Civil Procedure to eliminate
the count asserting the critical habitat issue. "Leave to amend a
complaint under Rule 15(a) `shall be freely given when justice so
requires.'" Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C.Cir. 1996) (quoting Rule 15(a), Fed.R.Civ.P.). "Although the
grant or denial of leave to amend is committed to the district
court's discretion, it is an abuse of discretion to deny leave to
amend unless there is sufficient reason, such as `undue delay,
bad faith or dilatory motive . . . repeated failures to cure
deficiencies by [previous] amendments . . . [or] futility of
amendment.'" Id. (quoting Foman v. Davis, 371 U.S. 178, 182,
83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).
Neither defendants nor defendant-intervenors have provided any
reason why the Court should not grant plaintiffs leave to amend
their complaint. Defendants do not assert that they will suffer
any prejudice as a result of the amendment; they argue only that
it is inappropriate to amend at this time when no new facts have
developed. In contrast, defendant-intervenors maintain that they
would be prejudiced because they would have to file their
own lawsuit to force the Service to designate critical habitat.
This additional burden on defendant-intervenors is not so onerous
as to amount to undue prejudice. Since defendants have not
demonstrated that any prejudice would result from permitting
plaintiffs to amend their complaint, and defendant-intervenors'
claims of prejudice are not persuasive, the Court would allow
plaintiffs to amend their complaint if it regained jurisdiction
over this matter. Accordingly, it is hereby
ORDERED that plaintiffs' motion for amendment of judgment
remanding to the U.S. Fish and Wildlife Service for designation
of critical habitat or, in the alternative, motion to amend the
complaint is DENIED without prejudice.
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