United States District Court for the District of Columbia
THE FUND FOR ANIMALS, et al., Plaintiffs,
FRAN MAINELLA, et al., Defendants.
The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
On December 8, 2003, this Court issued a Memorandum Opinion
denying the plaintiffs' request for a temporary restraining order
to prevent a black bear hunt in a portion of the Delaware Water
Gap National Recreation Area located in the State of New Jersey.
Fund for Animals v. Mainella, 294 F. Supp. 2d 46, 59 (D.D.C.
2003). The merits of the case are still pending before this
Court, however, the defendants have now filed a motion to dismiss
this case contending that it has become moot. Currently before
the Court are (1) the Defendants' Motion to Dismiss ("Defs.'
Mot.") and (2) the Plaintiffs' Opposition to Defendants' Motion
to Dismiss, Alternative Motion to Vacate, and Memorandum in
Support Thereof ("Pls.' Opp.'n").*fn1 For the following
reasons, this Court grants the defendants' motion to dismiss and
denies the plaintiffs' motion for vacatur.
I. Factual Background
The facts of this case can be found in this Court's December 8,
2003 opinion and will only be briefly restated here. Mainella,
294 F. Supp. 2d at 48-50. On May 5, 2003, the State of New Jersey proposed a
regulation, 35 N.J. Reg. 4053(a) (Sept. 2, 2003), to authorize a
limited black bear hunt in the state from December 8, 2003 until
December 13, 2003. Memorandum In Support of Defendants' Motion to
Dismiss ("Defs.' Mem.") at 3. The goal of the hunt was to help
maintain a healthy, stable black bear population. Id. On
December 1, 2003, the plaintiffs filed a complaint and a motion
in this Court for a temporary restraining order to prevent the
hunt from proceeding. Mainella, 294 F. Supp. 2d at 48. The
plaintiffs' central argument was that because part of the land on
which the hunt was to be conducted was federal land, the
defendants Fran Mainella, Director of the National Park Service
and Gale Norton, Secretary of the U.S. Department of Interior
("federal defendants") had violated the Administrative
Procedure Act ("APA"), 5 U.S.C. § 706, by acting in a manner that
was arbitrary, capricious and not in accordance with the law.
Id. Specifically, the plaintiffs alleged that the federal
defendants had an obligation to: (1) promulgate hunting
regulations pursuant to the Delaware Gap Enabling Act,
16 U.S.C. § 460; (2) ensure that the hunting would not impair park
resources or result in "wanton destruction" of park wildlife
under the National Park Service Organic Act, 16 U.S.C. § 1 et
seq.; and (3) prepare documents addressing, inter alia, the
indirect environmental impact on National Park rsouces as
required under the National Environmental Policy Act,
42 U.S.C. § 4331. Id.; Complaint for Declaratory and Injunctive Relief
("Compl.") ¶¶ 93, 96, 100.
On December 5, 2003, "due to the limited amount of time the
Court had to consider the issues raised by the parties," this
Court issued a temporary restraining order. Mainella,
294 F. Supp. 2d at 48. However, on December 8, 2003, after a more
thorough review of the case, this Court concluded that the
plaintiffs were not entitled to injunctive relief. Id. The
defendants now move to dismiss the case as moot since the challenged black bear
hunt has ended. Defs.' Mem. at 4. The plaintiffs oppose the
request for dismissal and have filed a cross-motion seeking
vacatur of the Court's December 8, 2003 opinion if this Court
should determine the case is now moot.
II. Standard of Review
Under Federal Rule of Civil Procedure 12(b)(1), which governs
motions to dismiss for lack of subject matter jurisdiction,
"[t]he plaintiff bears the burden of persuasion to establish
subject matter jurisdiction by a preponderance of the evidence."
Pitney Bowes, Inc. v. United States Postal Serv.,
27 F. Supp. 2d 15, 18 (D.D.C. 1998). In reviewing the
motion, this Court must accept as true all the factual allegations
contained in the complaint. Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507 U.S. 163,
164 (1993). Additionally, in deciding a Rule 12(b)(1) motion, it
is well established in this Circuit that a court is not limited to
the allegations in the complaint, but may also consider material
outside of the pleadings in its effort to determine whether the court
has jurisdiction in the case. See EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624-25 n. 3 (D.C. Cir. 1997);
Herbert v. Nat'l Academy of Sciences., 974 F.2d 192, 197 (D.C.
Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.
1987); Grand Lodge of Fraternal Order of Police,
185 F. Supp. 2d at 14. A motion to dismiss on the grounds of mootness is
properly brought under Rule 12(b)(1). See, e.g., Bracco
Diagnostics, Inc. v. Shalala, 1997 WL 614485, at *1 (D.D.C.
III. Legal Analysis
(A) Is this Case Moot?
The defendants contend that when the black bear hunt ended on
December 13, 2003, the plaintiffs were unable to receive any relief from this Court.
Therefore, the defendants argue that the Court should dismiss
this case as moot pursuant to Rule 12(b)(1). Defs.' Mem. at 4.
The plaintiffs explain, however, and opine that the case is not
moot because the defendants have not shown that the black bear
hunt will not occur again in the future. Pls.' Opp.'n at 9.
The mootness doctrine limits federal courts to
deciding "actual, ongoing controversies." "Even where
the litigation poses a live controversy when filed,
the doctrine requires a federal court to refrain from
deciding it if `events have so transpired that the
decision will neither presently affect the parties'
rights nor have a more-than-speculative chance of
affecting them in the future.'"
Lepelletier v. FDIC, 2001 WL 1491398 (D.C. Cir. 2001) (internal
citations omitted) (quoting Honig v. Doe, 484 U.S. 305
(1988); Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir.
1990)). However, a court will not apply the mootness doctrine and
dismiss a case if the challenged action is capable of repetition
but evading review. This disqualifier of the mootness doctrine is
"limited to situations where two elements [are] combined: (1) the
challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there
[is] a reasonable expectation that the same complaining party
[will] be subjected to the same action again." Weinstein v.
Bradford, 423 U.S. 147
, 149 (1975). Furthermore, "[i]t is well
settled that `a defendant's voluntary cessation of a challenged
practice does not deprive a federal court of its power to
determine the legality of the practice.'" Friends of the Earth,
Inc. v. Laidlaw Env. Serv., 528 U.S. 167
, 189 (2000) (citing
Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283
, 289 (1982)).
However, "`[a] case might become moot if [a defendant's]
subsequent [voluntary] events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to
recur.' The `heavy burden of persua[ding]' the court that the
challenged conduct cannot reasonably be expected to start up again lies with the party
asserting mootness." Id. at 189 (internal citation omitted).
In this case, the defendants assert that on December 13, 2003,
when the hunt ended as provided for in the New Jersey regulation,
this Court was unable to grant the plaintiffs any relief they
sought and thus this case became moot. Defs.' Mem. at 4.
Furthermore, the defendants contend that the "capable of
repetition, yet evading review" doctrine does not apply because
if black bear hunting is permitted in the future, the State of
New Jersey will be required to promulgate a new regulation in
accordance with the New Jersey Administrative Procedure Act,
N.J.S.A. 52:14B-1 to -15. Id. Thus, the defendants conclude
that any new rulemaking would likely be based upon new and
different facts and "provide [the] plaintiffs with ample
opportunity to bring a challenge. . . ." Defs.' Mem. at 4-5.
Furthermore, the defendants posit that this case does not fall
under the Laidlaw exception to the mootness doctrine because it
was the New Jersey state regulation, promulgated under the New
Jersey Administrative Procedure Act, that ended the hunt and not
any action by the federal defendants. Reply in Support of
Defendants' Motion to Dismiss ("Defs.' Reply") at 2. Thus, while
the federal defendants concede that the bear hunt could occur
again in the future, they argue it would not be based upon their
conduct, but rather, based on the actions of the State of New
Jersey. Id. at 3.
The plaintiffs contend that this case is not moot. Pls.' Opp.'n
at 9. Relying on Laidlaw, the plaintiffs argue that the
defendants have not demonstrated that "it is `absolutely clear'
that these actions cannot `reasonably be expected to recur.'"
Id. The plaintiffs argue that although this Court cannot grant
the plaintiffs relief regarding the 2003 hunting season, this
Court can grant relief regarding future hunting seasons.
Therefore, they argue that this case should not be dismissed as moot. Id. at 9-10.*fn2
This Court agrees with both parties that it cannot grant the
plaintiffs relief with respect to the 2003 hunting season, as it
has already expired. Pls.' Opp.'n at 9-10. See American Fed'n
of Gov't Employees, AFL-CIO v. United States, 330 F.3d 513, 518
(D.C. Cir. 2003) (declaring moot a claim for relief, which sought
an injunction against the enforcement of a provision of the FY
2000 Defense Appropriate Act since the fiscal year has "long
In this case, the end of the black bear hunt was mandated by
the New Jersey Regulation. See N.J.A.C. 7:25-5.6 (stating that
the black bear hunting season would run from December 8, 2003
until December 12, 2003). This regulation was promulgated by the
State of New Jersey, and was not based on any actions on the part
of the federal defendants. Thus, the end of the black bear
hunting season, as mandated by the regulation promulgated by the
State of New Jersey, mooted this case. It is clear that since the
federal defendants in the present action did not voluntary act to
make the case moot, the Supreme Court's decision in Laidlaw
does not apply. See Laidlaw, 528 U.S. at 189 (providing an
exception to the mootness doctrine based on the defendants
Furthermore, any relief that the plaintiff is seeking for
future bear hunting seasons, should the State authorize one,
would not escape review. If New Jersey were to authorize another
hunt, it would be required to promulgate a new regulation through
a notice and comment process under the New Jersey Administrative
Procedure Act. See N.J.S.A. 52:14B-1 to -15. Through this process, the facts and circumstances underlying the plaintiffs'
claims could be substantially different than the facts and
circumstances of the case currently before this Court. For
example, a subsequent regulatory authorization might not include
federal land in the approved hunting area, which would make this
case solely one of state law and this Court would not have
jurisdiction. Nevertheless, if any subsequent regulation is
promulgated, the plaintiffs would have notice of the rule making,
would be able to participate in it, and would have sufficient
time to challenge any federal agency action (or actionable
inaction) in this or another court of competent
jurisdiction.*fn3 This is simply not the type of case that
is capable of repetition, yet evading review. Compare Southern
Co. Svs., Inc. v. F.E.R.C., 2003 WL 22669559, at *1 (D.C. Cir.
2003) (noting that a challenge to the application of an agency
policy to a contract became moot when the contract expired even
though the allegedly illegal application of that policy was
capable of repetition because the policy would not evade review
in a subsequent case where the contract had not expired) with
Christian Knights of Ku Klux Klan Invisible Empire, Inc. v.
District of Columbia, 972 F.2d 365, 369-70 (D.C. Cir. 1992)
(concluding that application of a policy regarding protests could
escape review since protest permits only had to be secured
fifteen days prior to the protest, but judicial review could take
up to a year). For the foregoing reasons, this Court concludes
that this case is now moot and must be dismissed pursuant to Rule
12(b)(1). (B) Should this Court Vacate its December 8, 2003 Memorandum
Opinion and Order?
The plaintiffs argue that if this Court finds that the case is
now moot, it should vacate its December 8, 2003 decision. Pls.'
Opp.'n at 10-16. The purpose of vacatur is to "prevent [an
unreviewable opinion] from having a preclusive effect." Smith v.
State Farm Mut. Auto. Ins. Co., 964 F.2d 636, 638 (7th Cir.
1992). The Court does not, however, "vacate opinions, to prevent
them from having a precedential effect." Id. The Supreme Court
last addressed the issue of vacatur in U.S. Bancorp Mortgage Co.
v. Bonner Mall P'ship, 513 U.S. 18 (1994). Justice Scalia,
writing for a unanimous Court, concluded that "[a] party who
seeks review of the merits of an adverse ruling, but is
frustrated by the vagaries of circumstances, ought not in
fairness be forced to acquiesce in the judgment." Id. at 25.
"Where mootness results from settlement, however, the losing
party has voluntarily forfeited his legal remedy by the ordinary
processes of appeal or certiorari, thereby surrendering his claim
to the equitable remedy of vacatur. This judgement is not
unreviewable, but simply unreviewed by his own choice." Id.
Thus, "vacatur must be decreed for those judgments whose review
. . . become[s] moot due to circumstances unattributable to any
of the parties." Id. at 23 (citing Karcher v. May,
484 U.S. 72, 82-83 (1987); United States v. Munsingwear, Inc.,
340 U.S. 36, 40 (1950)). "It is the [plaintiffs'] burden, as the party
seeking relief from the status quo of the . . . judgment, to
demonstrate not merely equivalent responsibility for the
mootness, but equitable entitlement to the extraordinary remedy
of vacatur." Id. at 26.
A court granting vacatur "must also take account of the public
interest. `Judicial precedents are presumptively correct and
valuable to the legal community as a whole. They are not merely
the property of private litigants and should stand unless a court
concludes that the public interest would be served by vacatur." Bancorp,
513 U.S. at 27. "[P]ublic interest is best served by granting relief when
the demands of `orderly procedure,' cannot be honored; we think
conversely that the public interest requires those demands to be
honored when they can." Id. (internal citation omitted). In
determining whether to grant a motion for vacatur, this Court
must balance these competing equitable interests in determining
whether the motion should be granted. See National Black
Policy Ass'n v. District of Columbia, 108 F.3d 346, 354 (D.C.
It is the established practice of courts of appeal, when
presented with a case that has become moot either while it is
pending appeal or pending a decision of the appellate court on
the merits, "to reverse or vacate the judgment below and remand
with a direction to dismiss." Bancorp, 513 U.S. at 22-23
(citing Munsingwear, 340 U.S. at 39). This "clears the path for
future relitigation of the issues between the parties and
eliminates a judgment, review of which was prevented through
happenstance." Id.; see, e.g., Born Free USA v. Norton,
2004 WL 180163 (D.C. Cir. 2004) (vacating district court order
when the issues became moot on appeal); Pharmachemie B.V. v.
Barr Lab., Inc, 276 F.3d 627 (D.C. Cir. 2002) (same); Nat'l
Black Police Ass'n v. District of Columbia, 108 F.3d 346, 352-54
(D.C. Cir. 1997) (same). Vacatur is not simply a tool used by
appellate courts, as district courts have used the doctrine to
vacate their own opinions. See Davies v. Paul Revere Life Ins.
Co., 236 F. Supp. 2d 445, 445 (M.D. Pa. 2002); Milssen v.
Motorola Inc., 2002 WL 31369410 at *2-3 (N.D. Ill. 2002);
Keller v. Cubmerland, 951 F. Supp. 83, 84-85 (D. Md. 1997).
The plaintiffs raise two primary arguments in support of their
contention that this Court's December 8, 2003 opinion should be
vacated. First, they posit that because this case is now moot,
the plaintiffs' claims are unreviewable in the Court of Appeals.
Pls.' Opp.'n at 12. Furthermore, the plaintiffs opine that the case has not been fully reviewed by
this Court because the Court did not have the opportunity to
review the administrative record before issuing its opinion.
Id. at 12. Second, the plaintiffs contend that they would be
prejudiced without vacatur of the opinion because the opinion
sets precedent on the legal questions in dispute. Id. at 13.
As indicated, the plaintiffs first contend they were denied
full review by this Court because the Court did not have before
it the administrative record. Id. at 13. Under the APA, this
Court can give meaningful review to the merits of a case only
after the administrate record is produced. 5 U.S.C. § 706 ("[T]he
court shall review the whole [administrative] record or those
parts of it cited by a party . . ."); cf. American Bioscience
v. Thompson, 243 F.3d 579, 582-83 (D.C. Cir. 2001) (concluding
that when a district court reviews an informal agency action on
the merits, it should require the agency to file the
administrative record); Collagenex Pharm., Inc v. Thompson,
2003 WL 21697344 at *1 (D.D.C. 2003) ("The D.C. Circuit has
clearly held that courts should not issue preliminary injunctions
without a review of the entire administrative record to determine
a plaintiff's likelihood of success on the merits."). The
plaintiffs argue that many of the factual assertions made by the
defendants have not been tested against the administrative
record, thus full-meaningful review has not yet been given to
this case. Pls.' Reply at 16. The defendants contend, however,
that this is not a typical administrative records case since
there is no federal action for which an administrative record
could be prepared. Defs.' Reply at 7.
This Court agrees with the defendants' assertion that despite
the APA claims in the present lawsuit, the case before the Court
was one of statutory interpretation, not agency action. This
Court was asked to determine if the statutes mandated action by
the federal defendants, not whether the actions of the federal
defendants were contrary to the statutes. See Compl. ¶¶ 93, 96, 100. It is difficult to imagine that there would be any record of
agency "inaction" with which to produce an administrative record.
See, e.g., Northcoast Env. Ctr. v. Glickman, 136 F.3d 660,
665 (9th Cir. 1998) ("where the issue is alleged agency inaction,
. . . the scope of review in cases . . . is broader . . . because
there will generally be little, if any, record to review.")
The plaintiffs' contention that an administrative record exists
is merely speculative. Additionally, the plaintiffs have not
demonstrated that if they had the administrative record the facts
established by that record would be any different from the facts
before the Court when it was considering whether to issue a
temporary restraining order. Admittedly, the government has not
produced the administrative record, however, if one exists, it
appears that the plaintiffs have made no effort to acquire it.
Thus, despite the plaintiffs' strenuous argument that the case
cannot receive a full and fair review without access to the
administrative record, the plaintiffs have not alleged that the
defendants have refused to provide them with one and have not
filed a motion in this Court to compel the production of the
record by the defendants either before or after this Court's
December 8, 2003 opinion. It is an old axiom, which still holds
true, that in order to obtain equity, one must do equity. See,
e.g., Smith v. World Ins. Co., 38 F.3d 1456, 1462-63 (8th Cir.
1994) ("Before we can apply an equitable doctrine, we must
determine `whether he who seeks equity has done equity.'"). The
plaintiffs' argument rests largely upon their position that this
Court did not review the administrative record, yet they have
made no attempt to establish that one exists or to procure it.
The plaintiffs have voluntarily sat on their rights to obtain the
record, if it exists, and they cannot now claim that its absence
is the basis for receiving the extraordinary equitable remedy of
vacatur. Thus, the plaintiffs' argument for vacatur must fail.
This Court also finds no merit to plaintiffs' assertion that
they would be prejudiced if this opinion were to remain on the books. Pls.' Opp.'n at 13. As the
Seventh Circuit noted, the purpose of vacatur is to prevent
opinions from having a preclusive effect, not to prevent them
from setting precedent. See Smith, 964 F.2d at 638. In the
same vane, the District of Columbia Circuit has stated that
"establishment of precedent argues against vacatur, not in favor
of it." Mahoney v. Babbitt, 113 F.3d 219, 223 (D.C. Cir. 1997).
This Court notes at the outset, and the plaintiffs agree, that
the December 8, 2003 opinion will have no preclusive effect on
the parties in future litigation. See Pls.' Opp.'n at 14
(citing Industrial Bank of Washington v. Tobriner,
405 F.2d 1321, 1324 (D.C. Cir. 1968) (stating that the findings and
conclusions in preliminary injunctions are not preclusive); see
also Mahoney, 113 F.3d at 224 (noting the limited preclusive
value of findings made in granting or denying a preliminary
injunction). Additionally, the December 8, 2003 opinion has no
precedential value as to the merits of the matters in dispute.
The Court's opinion clearly reviews the plaintiffs' claim under
the four-prong standard for determining whether the plaintiffs
were entitled to injunctive relief. Mainella,
294 F. Supp. 2d at 50. The opinion is clear
that it is only reviewing the claims in assessing their likelihood
of success on the merits. Thus, any weight a court would subsequently
give to the December 8, 2003 opinion would be based on the
procedural context in which it was issued. Furthermore, it is
well established that this Court's opinion would not have any
precedential effect since a decision by a district court has no
precedential effect. This opinion is "not binding on a subsequent
court, whether as a matter of stare decisis or as a matter of
law of the case." In re Executive Office of President,
215 F.3d 20, 24 (D.C. Cir. 2000). Thus,
this Court attaches no merit to plaintiffs' argument that they
will be prejudiced if the December 8, 2003 opinion remains on the
books. Again, on this score, the plaintiffs have also failed to
meet their burden of demonstrating that vacatur is an appropriate equitable remedy in this case.
Admittedly, this case has not had the benefit of appellate
review. While generally this might weigh in favor of vacating the
opinion, such is not the case here. As noted above, because the
Court issued a ruling only on the motion for preliminary relief,
the December 8, 2003 decision will not have preclusive effect.
Had this Court issued a final opinion on the merits in the case,
the preclusive effect of that opinion would weigh in favor of
vacatur. However, because the purpose of vacatur is "to prevent
[the opinion] from having a preclusive effect" and this Court's
December 8, 2003 opinion will not have that impact, the fact that
the District of Columbia Circuit has not ruled on the issue
weighs in favor of denying vacatur.
This Court's inquiry does not end here, however, and this Court
must finally determine whether it is in the public interest to
vacate the December 8, 2003 opinion. As the Court noted in
Bancorp, "[j]udicial precedents are presumptively correct and
valuable to the legal community as a whole." Bancorp,
513 U.S. at 26. And the District of Columbia Circuit has concluded that
"establishment of precedent argues against vacatur, not in favor
of it." Mahoney, 113 F.3d at 223. The defendant intervenors
argue that this case sets strong precedent in interpreting laws
in which little has been written. Ints.' Opp.'n at 9-10. This
Court agrees that many of the issues addressed in the Court's
December 8, 2003 opinion were issues of first impression. This
fact actually weighs in favor of denying vacatur from the public
interest perspective. See, e.g., Keller v. Cumberland,
951 F. Supp. 83, 84 (D.Md. 1997) (denying motion to vacate because it
would deprive "the legal community of one of the few reported
cases in which the [Religious Freedom Restoration] Act has been
held unconstitutional"). And this holds true despite the December
8, 2003 opinion's lack of precedential value, as the opinion does
at least reveal one judicial officer's thoughts on several issues of first impression, thus again
weighing in favor of denying vacatur. Cf. Mahoney,
113 F.3d at 223.
For the foregoing reasons,*fn4 it is clear that when
determining whether equity demands vacatur of the December 8,
2003 opinion, the plaintiffs have failed to meet their burden of
persuasion and thus their motion must be denied.*fn5
For the foregoing reasons, this Court concludes that this case
is now moot. Furthermore, the plaintiffs have failed to meet
their burden of establishing that equity weighs in favor of this
Court vacating its December 8, 2003 opinion. Therefore,
plaintiffs motion for vacatur is denied. SO ORDERED*fn6