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Humane Society of the United States v. Johanns

June 21, 2007

THE HUMANE SOCIETY OF THE UNITED STATES, ET AL., PLAINTIFFS,
v.
MIKE JOHANNS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Presently before the Court is [78] "Plaintiffs' Expedited Motion for Relief Under Fed. R. Civ. P. 60(b) and Memorandum in Support Thereof," filed May 9, 2007. After considering Plaintiffs' Motion, related filings (including Federal Defendants' Opposition and DefendantIntervenor Cavel International Inc.'s (hereinafter, "Cavel") Opposition), the history of the case, and the relevant statutes and case law, the Court shall deny [78] "Plaintiffs' Expedited Motion for Relief Under Fed. R. Civ. P. 60(b)," and accordingly shall not reinstate Claim One of Plaintiffs' Amended Complaint.

I. BACKGROUND

The history and context of this case have been set forth in a number of lengthy memoranda and orders by this Court and shall be repeated herein only as relevant to the Motion presently before the Court. In Claim One of Plaintiffs' Amended Complaint, Plaintiffs had alleged that "[b]y creating a fee-for-service ante-mortem horse slaughter inspection system without providing advance public notice and an advance opportunity to comment, USDA has violated the Administrative Procedure Act, 5 U.S.C. § 553." Am. Compl. ¶ 94. In Claim Three of Plaintiffs' Amended Complaint, Plaintiffs had alleged that, "by creating a fee-for-service ante-mortem horse slaughter inspection system without first conducting any environmental review under the National Environmental Policy Act [(NEPA)], 42 U.S.C. § 4321, et seq., [United States Department of Agriculture (USDA)] has violated NEPA and the [Council on Environmental Quality's (CEQ's)] implementing regulations, abused its discretion, and acted arbitrarily and capriciously in violation of the Administrative Procedure Act [(APA)], 5 U.S.C. § 706(2)." Am. Compl. ¶ 98. On March 28, 2007, the Court issued an [67] Order and accompanying [68] Memorandum Opinion with respect to Claim Three, granting [39] Plaintiffs' Motion for Summary Judgment, denying [37] Defendants' Motion to Dismiss, or Alternatively, for Summary Judgment, and denying [38, 40] Defendant-Intervenors' Motion to Dismiss or, in the Alternative, for Summary Judgment on Claim Three of Plaintiffs' First Amended Complaint. In its Order, the Court declared the Interim Final Rule at issue to be in violation of the APA and NEPA, vacated the Interim Final Rule, permanently enjoined the Food Safety and Inspection Service (FSIS) from implementing the Interim Final Rule, and dismissed this case in its entirety. Accordingly, the Court also determined that it need not reach the issue of whether the Notice and Comment provisions of the APA were violated in the promulgation of the Interim Final Rule at issue such that the Court denied as moot [55] Plaintiffs' Motion for Summary Judgment on Claim One; [58] Defendant-Intervenors' Cross-Motion for Summary Judgment on Claim One of Plaintiffs' First Amended Complaint; and Defendants' [60] Motion for Summary Judgment on Claim One and Defendants' Motion to Dismiss, or Alternatively for Summary Judgment on this Claim. On April 13, 2007, the Court denied Cavel's [69] Emergency Motion for a Stay of the Court's March 28, 2007 Order. Only Cavel has appealed the Court's [67] Order, specifically appealing from the Court's Order

(a) granting Plaintiffs' Motion for Summary Judgment, (b) denying Defendants' Motion to Dismiss, or Alternatively, for Summary Judgment on Claim Three of Plaintiffs' First Amended Complaint, (c) declaring the Interim Final Rule to be in violation of the Administrative Procedure Act (5 U.S.C. § 706(2)) and the National Environmental Policy Act (42 U.S.C. § 4321, et seq.), (d) vacating the Interim Final Rule, and (e) permanently enjoining the Food Safety and Inspection Service of the United States Department of Agriculture from implementing the Interim Final Rule.

[76] Notice of Appeal at 1-2.On May 1, 2007, in a 2-1 decision, the United States Court of Appeals for the District of Columbia granted Cavel's request for an emergency stay of this Court's [67] Order.

On May 9, 2007, Plaintiffs filed the instant motion, [78] "Plaintiffs' Expedited Motion for Relief Under Fed. R. Civ. P. 60(b) and Memorandum in Support Thereof." Therein, Plaintiffs "move the Court, under Fed. R. Civ. P. 60(b), to reinstate plaintiffs [sic] Claim One . . . ." Pls.' R. 60(b) Mot. at 1. According to Plaintiffs, "[t]he reason for this motion is that . . . the D.C. Circuit has since stayed the Court's ruling [on Claim Three] and, as a result, the rule at issue in this case has effectively been reinstated." Id. Plaintiffs' request is made pursuant to both Rule 60(b)(5) and 60(b)(6). Id. at 3-5. Furthermore, according to Plaintiffs, "[b]ecause the only matter presently pending in the Court of Appeals is Cavel's appeal of this Court's resolution of Claim Three in favor of plaintiffs, see 4/13/07 Notice of Appeal (Doc. 76), there is no jurisdictional barrier to the Court's reinstatement and resolution of Claim One." Id. at 2 n.1 (citing United States v. DeFries, 129 F.3d 1293, 1302 (D.C. Cir. 1997)). Finally, Plaintiffs argue that "if this Court were to resolve the notice and comment claim at this juncture it would facilitate comprehensive review in the court of appeals of all legal grounds on which the rule at issue could be set aside. Reinstatement and expeditious resolution of this fully briefed claim would, therefore, serve the overall interests of judicial economy and efficiency." Id. at 6.

Both Federal Defendants and Cavel filed Oppositions to Plaintiffs' Rule 60(b) Motion. In Cavel's Opposition, Cavel argues both that this Court does not have jurisdiction to consider or grant Plaintiffs' Rule 60(b) Motion (citing DeFries), and that even if it did, Plaintiffs' Motion was not filed within a reasonable time, falls outside of the scope of Rule 60(b)(5), and "fails to demonstrate that this is an 'extraordinary' situation warranting relief under Rule 60(b)(6)." Cavel's Opp'n at 2. See also id. at 3.Federal Defendants*fn1 do not argue that this Court does not have jurisdiction to hear the Motion at issue; however, Federal Defendants do argue that Plaintiffs' motion falls outside of the scope of Rule 60(b)(5) and that Plaintiffs have not demonstrated the existence of extraordinary circumstances warranting relief pursuant to Rule 60(b)(6). Fed. Defs.' Opp'n at 5-6.*fn2

II. LEGAL ANALYSIS AND DISCUSSION

A. Jurisdiction

Despite Cavel's assertions to the contrary, the Court does presently have jurisdiction to consider Plaintiffs' Motion. Quoted above, Cavel's [76] Notice of Appeal does not include Claim One in its stated grounds of appeal.

The relationship between district court jurisdiction and the issuance of the appeals court mandate is clear and well-known: 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." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed. 2d 225 (1982) (per curiam). The district court does not regain jurisdiction over those issues until the court of appeals issues its mandate. Johnson v. Bechtel Associates Professional Corp., 801 F.2d 412, 415 (D.C. Cir. 1986) (per curiam).

DeFries, 129 F.3d at 1302 (emphasis added). See also Hicks v. Bush, 452 F. Supp. 2d 88, 98 (D.D.C. 2006) ("[A]lthough the filing of an appeal is 'an event of jurisdictional significance,' district courts retain jurisdiction in appealed cases to deal with ancillary matters that do not impinge upon the subject of the appeal." (citing Griggs, 459 U.S. at 58)). Upon examining Cavel's notice of appeal, it does not appear that Claim One is an "issue" or "aspect" involved in the appeal such that jurisdiction over Claim One has not been transferred to the Court of Appeals.

Furthermore, even if the Court's denial of the summary judgment motions with respect to Claim One were considered an "aspec[t] of the case involved" in Cavel's appeal (which pursuant to the text of the Notice of Appeal, is clearly not the case), this Court would have jurisdiction to deny Plaintiffs' Rule 60(b) motion nonetheless. In the instant Circuit, while a district court does not have jurisdiction to grant relief while a case is pending on appeal, a district court may consider a motion for such relief and deny such relief without a remand from the appellate court. See Hoai v. Vo, 935 F.2d 308, 312 (D.C. Cir. 1991) ("[W]hen both a Rule 60(b) motion and an appeal are pending simultaneously, appellate review may continue uninterrupted. At the same time, the District Court may consider the 60(b) motion and, if the District Court indicates that it will grant relief, the appellant may move the appellate court for a remand in order that relief may be granted."); 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."); Piper v. United States Department of Justice, 374 F. Supp. 2d ...


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