Case 1:21-cv-00112-APM Document 14 Filed 11/10/21 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`_________________________________________
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`WHALE AND DOLPHIN
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`CONSERVATION et al.,
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`Plaintiffs,
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`v.
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`NATIONAL MARINE FISHERIES
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`SERVICE et al.,
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`Defendants.
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`_________________________________________ )
`MEMORANDUM OPINION AND ORDER
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`Case No. 21-cv-112 (APM)
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`I.
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`Plaintiffs1 are organizations that have petitioned Defendants, the National Marine Fisheries
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`Service (“NMFS” or “the agency”) and the Secretary of Commerce, to engage in rulemaking to
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`protect North Atlantic right whales from vessel collisions, a leading cause of death for the critically
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`endangered species. In 2008, the NMFS promulgated regulations targeting vessel collisions,
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`including rules limiting speeds at which certain vessels may travel in particular areas along the
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`right whale’s migratory route. See Compl. for Declaratory and Injunctive Relief, ECF No. 1
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`[hereinafter Compl.], ¶ 12. In 2012, a subset of Plaintiffs filed a petition for rulemaking (“the 2012
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`Petition”) calling for an expansion of the vessel-speed rule. Compl. ¶ 14. Then, in August 2020,
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`Plaintiffs filed another petition for rulemaking (“the 2020 Petition”), making similar requests. Id.
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`Five months after filing their second petition, Plaintiffs filed this action under the
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`Administrative Procedure Act (“APA”). See Compl. They allege unreasonable delay in
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`1 Plaintiffs are Whale and Dolphin Conservation, Defenders of Wildlife, the Conservation Law Foundation, and the
`Center for Biological Diversity.
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`Case 1:21-cv-00112-APM Document 14 Filed 11/10/21 Page 2 of 8
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`Defendants’ response to their petitions and ask the court for declaratory and injunctive relief,
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`including orders “enjoining Defendants from further delay in responding substantively” to the
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`petitions. Compl. at 31–32.
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`Defendants have moved to dismiss the Complaint for lack of subject matter jurisdiction on
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`the ground of mootness. Defs.’ Mot. to Dismiss the Compl., ECF No. 10 [hereinafter Defs.’ Mot.];
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`Fed. R. Civ. P. 12(b)(1), (h)(3). For the reasons that follow, the motion is denied in part and
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`granted in part.
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`II.
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`When deciding a motion under Rule 12(b)(1), a court must accept all well-pleaded factual
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`allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA., 402 F.3d 1249,
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`1253 (D.C. Cir. 2005). Because the court has “an affirmative obligation to ensure that it is acting
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`within the scope of its jurisdictional authority,” however, the factual allegations in the complaint
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`“will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for
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`failure to state a claim.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d
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`9, 13–14 (D.D.C. 2001) (internal quotation marks omitted). To that end, the court may consider
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`“such materials outside the pleadings as it deems appropriate to resolve the question whether it has
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`jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22
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`(D.D.C. 2000); see also Mykonos v. United States, 59 F. Supp. 3d 100, 103–04 (D.D.C. 2014)
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`(applying rule in mootness context). Thus, “where necessary, the court may consider the complaint
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`supplemented by undisputed facts evidenced in the record, or the complaint supplemented by
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`undisputed facts plus the court’s resolution of disputed facts.” See Coal. for Underground
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`Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted).
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`2
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`Case 1:21-cv-00112-APM Document 14 Filed 11/10/21 Page 3 of 8
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`Mootness is one ground for dismissal for lack of subject matter jurisdiction under Rule
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`12(b)(1). Indian River Cty. v. Rogoff, 254 F. Supp. 3d 15, 18 (D.D.C. 2017) (“A motion to dismiss
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`for mootness is properly brought under Rule 12(b)(1) because mootness itself deprives the court
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`of jurisdiction.”). “Federal courts lack jurisdiction to decide moot cases because their
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`constitutional authority extends only to actual cases or controversies.” Conservation Force, Inc. v.
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`Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013) (internal quotation marks omitted). “A case is moot
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`when the challenged conduct ceases such that there is no reasonable expectation that the wrong
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`will be repeated in circumstances where it becomes impossible for the court to grant any effectual
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`relief whatever to the prevailing party.” United States v. Philip Morris USA, Inc., 566 F.3d 1095,
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`1135 (D.C. Cir. 2009) (internal quotation marks omitted). Stated differently, a case
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`becomes moot when “the court can provide no effective remedy because a party has already
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`obtained all the relief that it has sought.” Conservation Force, 733 F.3d at 1204 (alteration and
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`internal quotation marks omitted). “The initial heavy burden of establishing mootness lies with
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`the party asserting a case is moot, but the opposing party bears the burden of showing an exception
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`applies[.]” Honeywell Int’l, Inc. v. Nuclear Regul. Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010)
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`(citations and internal quotation marks omitted).
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`III.
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`The APA requires agencies to “give an interested person the right to petition for the
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`issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). An agency must “proceed to
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`conclude a matter presented to it,” including a petition requesting rulemaking, “within a reasonable
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`time,” 5 U.S.C. § 555(b), and a court may “compel agency action unlawfully withheld or
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`unreasonably delayed.” 5 U.S.C. § 706(1); see Nat’l Parks Conservation Ass’n v. U.S. Dep’t of
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`Interior, 794 F. Supp. 2d 39, 44 (D.D.C. 2011) (“If the agency does not respond to a petition [for
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`Case 1:21-cv-00112-APM Document 14 Filed 11/10/21 Page 4 of 8
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`rulemaking], a reviewing court may ‘compel agency action unlawfully withheld or unreasonably
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`delayed.’” (quoting 5 U.S.C. § 706(1))).
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`Plaintiffs here ask the court to compel such allegedly “unreasonably delayed” action—
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`long-awaited responses to their 2012 and 2020 Petitions for rulemaking to the NMFS. Compl. at
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`32. Defendants counter that the court cannot grant the requested relief because Plaintiffs asked
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`only for a “response” to their petitions, and the agency sent a letter in March 2021 (two months
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`after Plaintiffs initiated this action) responding to both petitions. Defs.’ Mot. at 1–2.
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`Consequently, they contend, the case is moot. See id.
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`Defendants are of course correct that “[i]f . . . an agency does respond to a petition, even
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`after a suit to compel a response is filed, such a suit is rendered moot,” unless an exception is
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`shown to apply. Nat’l Parks Conservation Ass’n, 794 F. Supp. 2d at 44–45. The question is thus
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`whether the March 2021 letter constitutes a “response” to Plaintiffs’ two petitions. The court finds
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`that the March 2021 letter constitutes a “response” to the 2012 Petition but not the 2020 Petition.
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`Plaintiffs’ APA action is therefore partially moot.
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`A.
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`With respect to their 2020 Petition, Plaintiffs seek as relief a declaration “that Defendants’
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`ongoing failure to act on the 2020 Petition constitutes agency action unreasonably delayed in
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`violation of the APA” and “an order enjoining Defendants from further delay in responding
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`substantively to the 2020 Petition and requiring a response to the 2020 Petition within 60 days[.]”
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`Compl. at 32. It is ambiguous what Plaintiffs mean by a “substantive[]” response. See id.
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`However, viewing the request in the light most favorable to Plaintiffs, an order requiring a
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`substantive response could include an order directing the agency to provide a definitive answer as
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`to whether it will grant or deny the 2020 Petition. See Pls.’ Mem. of Law in Opp’n to Defs.’ Mot.,
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`ECF No. 11 [hereinafter Pls.’ Opp’n], at 23 (“NMFS’s ‘response’ to Plaintiffs’ 2020 Petition fails
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`to provide a[n] . . . answer as to whether the agency intends to initiate . . . a rulemaking . . . .”).
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`That is relief the court could grant if the Plaintiffs were to succeed on the merits of their claim.
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`The APA requires an agency to “receive and respond to petitions for rulemaking.” WWHT,
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`Inc. v. FCC, 656 F.2d 807, 813 (D.C. Cir. 1981). Congress did not intend to require an agency to
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`engage in rulemaking merely because it receives a petition to do so. See id. The agency must,
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`however, “fully and promptly” consider a rulemaking request, and it “may either grant the petition,
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`undertake public rule making proceedings[,] or deny the petition.” Id. (alternation omitted)
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`(quoting S. Rep. No. 752, 79th Cong., 1st Sess. (1945)); see also Nat’l Parks Conservation Ass’n,
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`794 F. Supp. 2d at 44 (stating that agencies are “required to at least definitively respond to a
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`petition—that is, to either deny or grant the petition” (cleaned up)). Here, the agency did not either
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`“grant . . . or deny the petition,” WWHT, 656 F.2d at 813, and it did not initiate rulemaking
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`proceedings. Its response, such as it is, was limited to a few sentences in a two-page letter sent in
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`March of this year. That letter pointed Plaintiffs to a January 2021 report prepared by the agency
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`“evaluating the conservation value and economic and navigational safety impacts of the
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`[vessel-]speed rule,” noting that “it makes a number of recommendations in line with [Plaintiffs’]
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`petition.” Notice of Filing Joint Administrative R. App., ECF No. 13, Joint Administrative R.
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`App., ECF No. 13-1 [hereinafter Admin. R.], at 197–98. The agency encouraged Plaintiffs to
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`“provide any . . . comments [on the report] as part of the public comment process” and concluded
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`by stating that the agency “awaits completion of public comment on the report and then will
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`consider what actions may be appropriate at that time.” Id. at 198. The letter thus contained no
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`“definitive decision” to grant or deny the 2020 petition. Nat’l Parks Conservation Ass’n,
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`794 F. Supp. 2d at 45. The court could compel the agency to supply one, rendering this case a live
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`controversy.
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`The agency appears to argue that it fully discharged its duties to respond to Plaintiffs’ 2020
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`Petition. See Defs.’ Mot. at 10–11. First, the agency contends that Plaintiffs are entitled to no
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`particular type of response because their Complaint requested only a response. See Defs.’ Reply
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`in Supp. of Mot. to Dismiss, ECF No. 12 [hereinafter Defs.’ Reply], at 8–9. But as the court has
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`already explained, the Complaint can plausibly be construed to seek an order requiring Defendants
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`to provide a definitive answer as to whether they are denying or granting the petition. See Defs.’
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`Reply at 3 (conceding that Plaintiffs requested, with respect to the 2012 Petition, “a response that
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`either ‘grants or denies’ the petition”); Compl. at 32–33 (requesting the same relief as to each
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`petition). Next, the agency attempts to cast Plaintiffs’ request that the court order a “date for
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`NMFS to act on Plaintiffs’ [2020] petition,” Pls.’ Opp’n at 15, as an impermissible request for an
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`order requiring Defendants to engage in rulemaking on the petition. Defs.’ Reply at 2. But that is
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`not the relief Plaintiffs seek. They ask the court only to compel the agency to “act on” the pending
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`petition by a certain date, not to compel it to engage in rulemaking. Cf. In re Am. Rivers & Idaho
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`Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (“We are not concerned here with what answer
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`[the agency] might ultimately give the petitioners; rather, we are reviewing its failure to give them
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`any answer . . . .”).
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`Finally, from a practical perspective, the agency’s position is untenable. If the agency were
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`correct that its letter—providing no definitive answer—is an adequate “response” for APA
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`purposes, then it could effectively inoculate itself from being compelled to respond to petitions for
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`rulemaking in future instances by providing a half-hearted reply saying, effectively, “We’re
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`thinking about it.” An agency cannot avoid its obligation to “fully and promptly consider” a
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`Case 1:21-cv-00112-APM Document 14 Filed 11/10/21 Page 7 of 8
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`petition for rulemaking—and shield itself from future judicial review—merely by issuing a
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`noncommittal response. Cf. In re A Cmty. Voice, 878 F.3d 779, 786 (9th Cir. 2017) (rejecting the
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`view that an agency’s “grant” of a rulemaking petition forecloses a court from evaluating whether
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`such rulemaking has been unreasonably delayed; the contrary view “would allow the [agency] to
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`grant petitions for rulemaking and take no action in order to avoid judicial review”).
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`Plaintiffs’ claim as to the 2020 Petition is therefore not moot, and the motion to dismiss
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`that claim is denied.
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`B.
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`The court reaches a different conclusion as to the 2012 Petition. Unlike the 2020 Petition,
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`the March 2021 letter states the agency’s definitive decision with respect to the 2012 Petition in
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`no uncertain terms: “[W]e decline to take any additional action in response to the 2012 petition.”2
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`Admin. R. at 197. Plaintiffs respond that the agency’s rationale for this decision, as expressed in
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`the March 2021 letter, is not grounded in fact or is otherwise deficient. See Pls.’ Opp’n at 16–19.
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`But that argument goes to the merits of the agency’s substantive decision and whether it was
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`arbitrary and capricious—a claim not before the court. See 5 U.S.C. § 706(2)(A). For present
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`purposes, the question is whether the agency provided a firm answer to Plaintiffs’ 2012 Petition.
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`It did. Plaintiffs’ APA claim as to the 2012 Petition is therefore moot.
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`Plaintiffs seek to avoid this result by invoking the “voluntary cessation” exception to the
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`mootness doctrine. See Pls.’ Opp’n at 23–26.3 But applying the voluntary-cessation exception
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`2 Defendants also argue that several other “rulemaking and other actions . . . were responsive to Plaintiffs’ petitions.”
`Defs.’ Mot. at 1 n.2. Because the court finds that the March 2021 letter independently renders Plaintiffs’ 2012 claim
`moot, the court need not reach these arguments and does not express a view on them.
`3 Plaintiffs also contend that their claim as to the 2020 Petition satisfies the “capable of repetition yet evading review”
`exception, see Pls.’ Opp’n at 26–28, but the court does not reach that argument because it has already found that claim
`to be not moot.
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`makes little sense here. “Aimed as it is at party manipulation of the judicial process through the
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`false pretense of singlehandedly ending a dispute,” that exception “presupposes that the infringing
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`party voluntarily exercises its own unilateral power not only to terminate the suit and evade judicial
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`review, but also to pick up where he left off and complete the devious cycle after the litigation is
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`dismissed.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 15 (D.C.
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`Cir. 2019) (internal quotation marks omitted). Here, the agency has told Plaintiffs that it does not
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`intend to take further action on the 2012 Petition. The court cannot fathom that the agency made
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`that decision with the intent to later rescind it only to delay—again—responding to the petition.
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`Thus, the evil that is sought to be remedied here, unreasonable delay in responding to the 2012
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`Petition, is not likely at all to recur after that claim is dismissed. The voluntary-cessation exception
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`therefore does not apply.
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`IV.
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`For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 10, is granted in part
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`and denied in part. Defendants shall file an Answer on or before November 24, 2021.
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`Dated: November 10, 2021
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`Amit P. Mehta
`United States District Court Judge
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