Flaherty v. Pritzker
322 F.R.D. 44
| D.D.C. | 2017Background
- Plaintiffs (Flaherty, Captain Hastbacka, Ocean River Institute) challenge NMFS rules adopting Amendments 4 and 5 to the Atlantic Herring Fishery Management Plan (FMP) for failing to add river herring and shad as stocks requiring conservation and management.
- This Court previously found Amendment 4 violated the MSA, NEPA, and APA, remanded with instructions that NMFS recommend the Council consider adding river herring/shad to the FMP; NMFS recommended but the Council declined to add them and NMFS implemented Amendment 5 without adding them.
- Plaintiffs moved for leave to file a third amended and supplemental complaint to add the New England Fishery Management Council and its Executive Director Thomas Nies as defendants and to plead subsequent events.
- Defendants opposed primarily on futility grounds, arguing the Council is not an "agency" under the APA and did not take final agency action; Intervenor relied on Anglers-related precedent.
- The Court applied the Rule 15 liberal amendment standard (citing Foman and Firestone), found no undue delay or prejudice, and determined the agency-status/finality questions are novel and better resolved after fuller briefing on the merits.
- The Court granted leave to amend, concluding the proposed additions do not improperly expand the case and are not futile at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Leave to amend to add Council and its director as defendants | Addition needed so court can compel the Council to act; NMFS lacks authority to force the Council | Amendment is futile because Council is not an "agency" under the APA and did not take final agency action | Granted: Court permits amendment; finds the agency/finality issues are novel and better developed at motion to dismiss/summary judgment stage |
| Scope expansion by amendment | Amendment does not change core facts or legal issues (still about river herring/shad) | (Implicit) concern about expanding litigation | Denied: Court finds scope not materially expanded |
| Undue delay / prejudice | Plaintiffs moved early; case stayed previously but merits not yet briefed | Defendants did not argue undue delay/prejudice (focused on futility) | No undue delay or prejudice; factor favors permitting amendment |
| Futility under Rule 15 (APA standing to sue Council; final agency action) | Council could be an agency; issue is unsettled and merits detailed briefing | Council not an agency; Anglers suggests regional councils are not agencies and not subject to APA review | Not decided on the merits: Court rejects finding futility at pleading stage and allows amendment to permit full litigation of these novel legal questions |
Key Cases Cited
- Firestone v. Firestone, 76 F.3d 1205 (D.C. Cir. 1996) (standards for denial of leave to amend)
- Foman v. Davis, 371 U.S. 178 (U.S. 1962) (factors for granting leave to amend)
- Caribbean Broadcasting Sys. v. Cable & Wireless PLC, 148 F.3d 1080 (D.C. Cir. 1998) (assume truth of allegations on motion to amend)
- Anglers Conservation Network v. Pritzker, 139 F. Supp. 3d 102 (D.D.C. 2015) (prior district discussion of council and NMFS responsibilities)
- Anglers Conservation Network v. Pritzker, 809 F.3d 664 (D.C. Cir. 2016) (appellate decision referenced on council agency-status issues)
- J. H. Miles & Co., Inc. v. Brown, 910 F. Supp. 1138 (E.D. Va. 1995) (noting closeness of whether regional councils qualify as agencies)
- Flaherty v. Bryson, 850 F. Supp. 2d 38 (D.D.C. 2012) (discussing NMFS ultimate responsibility for FMP amendments)