The opinion of the court was delivered by: Friedman, District Judge.
MEMORANDUM OPINION AND ORDER
On July 25, 1997, the Court upheld the decision of the United
States Fish and Wildlife Service ("the Service") to list the four
species of fairy shrimp, a type of tiny crustacean that lives in
the vernal pools of central California, as endangered or
threatened under the Endangered Species Act. See Building Indus.
Ass'n of Superior California v. Babbitt, 979 F. Supp. 893 (D.D.C.
1997). In the same Opinion, the Court remanded the issue of
whether to designate critical habitat for the fairy shrimp to the
Service and instructed it either to designate the habitat or to
provide adequate record support and a reasoned explanation for a
contrary decision. See id. at 906.
The Court subsequently granted plaintiffs' motion to certify
the listing issues for immediate appellate review under Rule
54(b) of the Federal Rules of Civil Procedure, but the court of
appeals dismissed the appeal and remanded the case, ruling that
the certification was improper. See Building Indus. Ass'n of
Superior California v. Babbitt, 161 F.3d 740 (D.C.Cir. 1998).
After the Service reported to the Court that it had determined
that the designation of critical habitat was not prudent, the
Court vacated the Service's determination as arbitrary and
capricious and not supported by the administrative record,
remanded the matter to the Service for proceedings not
inconsistent with its Opinion and entered final judgment. See
Opinion of March 31, 1999.
Plaintiffs now have appealed this Court's initial ruling
regarding the listing of the four species of fairy shrimp for the
second time. The court of appeals, however, recently ordered the
parties to brief the question of "whether in light of the
district court's March 31, 1999, order remanding for further
proceedings, [the court of appeals] has jurisdiction over the
appeal." See July 19, 1999 Order, Pl.'s Mot., Att. A. Fearful
that this order suggests that they might once again be denied
review of the listing decision on the merits in the court of
appeals, plaintiffs have moved this Court to amend its judgment
to strike the remand to the agency or, in the alternative, for
leave to amend the complaint to eliminate the critical habitat
"The filing of a notice of appeal, including an interlocutory
appeal, `confers jurisdiction on the court of appeals and divests
the district court of control over those aspects of the case
involved in the appeal.'" United State v. DeFries,
129 F.3d 1293, 1302 (D.C.Cir. 1997) (quoting Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225
(1982)); see also Deering Milliken, Inc. v. FTC, 647 F.2d 1124,
1128 (D.C.Cir. 1978) ("the District Court is without jurisdiction
to alter a judgment of its own while an appeal therefrom is
ongoing"); Public Citizen v. Carlin, 2 F. Supp.2d 18, 20 (D.D.C.
1998) ("[t]he filing of a notice of appeal divests this Court of
jurisdiction to alter, amend or expand a declaratory judgment").
Plaintiffs' reliance on Standard Oil Co. of California v. United
States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976), to
support a contrary position is in error. In that case, the
Supreme Court held that after an appeal had been decided and
the mandate was issued, the district court did not have to gain
leave of the appellate court before ruling on a motion for a new
trial. See id. at 18-19, 97 S.Ct. 31. The Standard Oil court
did not address whether a district court had jurisdiction during
the pendency of an appeal. As the notice of appeal has been filed
in this case, only the court of appeals has jurisdiction over the
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
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 ...