59 F. Supp. 3d 91
D.D.C.2014Background
- PETA sued FWS challenging issuance of 15 export/re-import permits to Hawthorn, alleging FWS failed to provide statutorily required 10 days’ notice and engaged in a broader "pattern and practice" of illegal permitting.
- The permits were issued May 9, 2013, expired October 31, 2013, and were not renewed; the tigers returned to the U.S. and no amendments were made after expiration.
- FWS moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing mootness, lack of standing, and insufficient APA/pattern-and-practice pleading.
- The Court considered mootness, mootness exceptions (voluntary cessation; capable of repetition yet evading review), and whether PETA adequately pleaded a pattern-and-practice claim or presented ripe issues.
- The Court found claims challenging the specific permits moot, declined to apply mootness exceptions, and held PETA’s pattern-and-practice allegations insufficiently pleaded and unripe.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are claims attacking the specific permit grants justiciable or moot? | The injury continues because FWS might extend or reissue permits without notice. | The permits expired and were not amended/extended; thus no live controversy. | Moot: individual-action claims dismissed; relief impossible. |
| Does voluntary cessation exception save the case from mootness? | FWS’s decision not to extend may be voluntary cessation that can be reversed. | Expiration was natural; FWS’s conduct did not change to moot case; regs prohibit amending expired permits. | No: voluntary cessation inapplicable; FWS met burden showing no reasonable expectation of recurrence here. |
| Does the "capable of repetition, yet evading review" exception apply? | Five-month permits are too short to litigate and likely to recur. | Short duration not typical for such permits; here not shown to be typical for this agency action. | No: exception requires typical short duration and plaintiff’s efforts to avoid mootness; not met. |
| Are PETA’s pattern-and-practice claims ripe and sufficiently pleaded to avoid dismissal? | Alleged systemic failure to give notice and a "pay-for-play" policy justify declaratory relief and are ongoing issues. | Allegations are bare; agency presumption of following regulations; no concrete policy or guidance identified. | No: claims unripe and inadequately pleaded under Iqbal/Twombly; dismissible. |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (jurisdictional burden and limited federal-court jurisdiction)
- McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders, 264 F.3d 52 (mootness requires live controversy throughout litigation)
- National Football League Players Ass’n v. Pro Football, Inc., 56 F.3d 1525 (mootness where effective relief impossible due to elapsed season)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (burden on defendant to show voluntary cessation mootness is permanent)
- Weinstein v. Bradford, 423 U.S. 147 (test for capable of repetition yet evading review)
- Del Monte Fresh Produce Co. v. United States, 570 F.3d 316 (requirement that short duration be typical for exception to apply)
- City of Houston v. Department of Housing & Urban Dev., 24 F.3d 1421 (mootness of isolated agency action also moots related declaratory request absent ongoing policy)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (ripeness: fitness of issues and hardship analysis)
- Theodore Roosevelt Conservation Partnership v. Salazar, 661 F.3d 66 (presumption that agencies follow their own regulations)