Flaherty v. Locke , 322 F.R.D. 44 ( 2017 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    MICHAEL    s.    FLAHERTY, et al.,
    Civil Action No. ll-660(GK}
    Plaintiffs,
    v.
    PENNY PRITZKER, et al.,
    Defendants
    And
    SUSTAINABLE FISHERIES
    COALITION,
    Defendant-Intervenor:
    MEMORANDUM OPINION
    Plaintiffs Michael S.              Flaherty,     Captain Alan A.        Hastbacka,
    and the Ocean River Institute                ("Plaintiffs"),      bring this action
    against    Commerce         Secretary     Penny     Pritzker     who   has    now    been
    succeeded by Wilbur Ross,               the National Oceanic and Atmospheric
    Administration          ("NOAA"),      and    the     National    Marine      Fisheries
    Service         ( "NMFS")    (collectively          "Defendants"),     as     well     as
    Defendant-Intervenor           Sustainable         Fisheries     Coalition     ("SFC").
    This matter is now before the Court on Plaintiffs'                           Motion for
    Leave to File Third Amended and Supplemental Complaint                           ( "Pls.'
    Mot.")    [Dkt.      No.    152].    In the Motion,       Plaintiffs     seek,      among
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    other things,        to add the New England Fishery Management Council
    and its Executive Director,                 Mr.       Thomas Nies,            as Defendants in
    this matter.
    Upon consideration of the Motion,                        Oppositions,             Reply,    the
    entire      record    herein,        and   for        the   reasons           discussed       below,
    Plaintiffs' Motion is granted.
    I .     BACKGROUND
    A. Factual Background
    On March     2,     2011,    the    National        Marine           Fisheries       Service
    ( "NMFS")    published its          Final Rule          implementing Amendment                     4 to
    the     Atlantic     Herring        Fishery       Management              Plan   ("FMP").          Final
    Rule,    76 Fed.     Reg.    8,786     (Feb.      2,    2011).        The NMFS and the New
    England      Fishery       Management         Council          (the         "Council")       jointly
    developed Amendment 4 in order to bring the FMP into compliance
    with the annual catch limits and accountability measures of the
    Magnuson-Stevens          Act    ("MSA"),        16    U.S.C.         §     1801,    by     the     2011
    statutory     deadline.         On March         8,    2012,         this    Court        found     that
    Amendment      4     violated        certain          provisions            of   the       MSA,      the
    Administrative            Procedure        Act         ("APA")   I         and      the     National
    Environmental Policy Act ("NEPA"), and issued an Order remanding
    the action to Defendants which contained specific guidance,                                           as
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    well    as    a    time line,       for    actions     Defendants       were       to    take       and
    complete within one year ("Remedial Order")                         [Dkt. No. 41] .
    In that Order,          the Court ordered NMFS to send a letter to
    the     Council      "recommending           that     the    Council     consider,             in     an
    amendment to the Atlantic Herring FMP,                         whether        'river herring'
    [including          shad]     should       be   designated         as    a     stock       in        the
    fishery[.]" Remedial Order at 11. Although NMFS sent two letters
    to     the        Council     making        this       recommendation,             the     Council
    ultimately         adopted      recommendations             that   failed      to       add     river
    herring and shad as stocks in the Atlantic herring fishery.                                           On
    February 13,          2014,     NMFS published its             Final Rule          implementing
    Amendment 5, which similarly failed to include river herring and
    shad as       stocks      in the fishery.            Final Rule,        7 9 Fed.         Reg.       87 86
    (Feb. 13, 2014).
    B. Procedural History
    On March 31,          2014,       this Court granted Plaintiffs'                      request
    to    file    a    Supplemental Complaint challenging Amendment                               5.     See
    Order    [Dkt.      No.     92]. At the Parties'             request,        the Court stayed
    the    case       through     November       28,      2016    in   light      of    anticipated
    actions by NMFS that could have alleviated Plaintiffs' concerns.
    On November 29,             2016,     the Court held a             status conference and
    ordered the parties to submit a proposed briefing schedule. On
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    January 6,       2017,    Plaintiffs filed the present Motion for Leave
    to File Third Amended and Supplemental Complaint '[Dkt. No. 152].
    Defendants        and      Defendant-Intervenor              filed      Oppositions           to
    Plaintiffs' Motion on January 19,                   2017    [Dkt. Nos. 153 and 154].
    On January        27,    2017,      Plaintiffs'     filed     their Reply          [Dkt.    No.
    155] .
    II.     STANDARD OF REVIEW
    The amendment of pleadings in civil matters is governed by
    Rule 15 of the Federal Rules of Civil Procedure,                                which states
    that the "court should freely give leave [to amend] when justice
    so requires." Fed. R. Civ. P. 15 (a) (2). The decision to grant or
    deny leave to amend rests in the sound discretion of the trial
    court;     however,      it    is    an    abuse    of     discretion      to    deny      leave
    without a        sufficient      justification for doing             so.        Firestone v.
    Firestone,       
    76 F.3d 1205
    , 1208           (D.C. Cir. 1996)          (citing Foman v.
    Davis,     
    371 U.S. 178
    ,       182    (1962)).       Sufficient      justifications
    include "undue delay, bad faith or dilatory motive ... repeated
    failure to cure deficiencies by                    [previous]     amendments                [or]
    futility of amendment." 
    Id. (quoting Foman,
    371 U.S. at 182).
    In assessing      a     motion     for    leave    to   amend,     the    Court      is
    required to assume the truth of the allegations in the amended
    complaint and construe them in the light most favorable to the
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    movant. Caribbean Broadcasting Sys. v. Cable & Wireless PLC, 
    148 F.3d 1080
    ,      1086     (D.C.         Cir.        1998).       The     party       opposing       the
    amendment            bears     the    burden          to     show    why       leave     should      not    be
    granted. Dove v. Washington Metro. Area Trans. Auth., 
    221 F.R.D. 246
    ,        247   (D.D.C. 2004)          (citing Gudavich v. Dist. of Columbia, 
    22 F. App'x 17
    , 18 (D.C. Cir. 2001)).
    III. DISCUSSION
    Plaintiffs         seek        to     amend           their        Second        Supplemental
    Complaint to add the New England Fishery Management Council and
    its         Executive         Director,          Mr.         Thomas        Nies,       as      Defendants.
    Plaintiffs also set forth events, and a related claim, that have
    occurred             since     Plaintiffs              filed        the        Second        Supplemental
    Complaint.1
    Plaintiffs argue that the proposed amendments are necessary
    to end the loop that continues to preclude the relief they seek:
    (1)     the   Council       has        a    duty        to    add      fish       stocks       requiring
    conservation            and    management;             (2)       river     herring       and       shad    need
    conservation            and     management;            (3)       NMFS,        which    has     a    duty     to
    ensure        that      the Mangnuson-Stevens Act                        is    fulfilled,          lacks    the
    authority          to    force       the       Council       to     take       action;       and     (4)    the
    1
    Plaintiffs also move to withdraw their prior Count II which concerned
    accountability in the fishery. Since Defendants and Intervenor-
    Defendant do not object to this request, See Defs.' Mot. at 6 and
    Inter.-Def.'s Mot. at 2, the Court need not consider it at this time.
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    Council has not passed,            on its own,        the necessary amendment to
    add river      herring and         shad    to    the Atlantic       herring       FMP.    See
    Pls.'s Mot. at 3.
    According      to     Plaintiffs,     only a      court order specifically
    directing      the    Council      to     take    action     to    remedy     what        they
    consider to be legal violations of the MSA can provide them the
    relief they seek. 
    Id. A. The
    Proposed Amendments Do Not                     Improperly      Expand        the
    Scope of the Original Complaint.
    A key issue to decide               in any Motion to Amend is whether
    Plaintiffs have        improperly expanded the               scope of      the original
    Complaint. Wright v. Corr. Corp. of America,                       
    2016 WL 264907
    , at
    *2    (D.D.C. Jan.     21,    2016). A comparison of the proposed Amended
    Complaint     with     the     original     Complaint        in    this    case    clearly
    reveals that Plaintiffs have not sought to significantly expand
    the    scope of      the case.      The    core   facts    and allegations           remain
    substantially        unchanged          between    the     two      documents.           While
    Plaintiffs have added the Council and Mr.                         Nies as Defendants,
    they have done so in an attempt to hold the relevant entities
    accountable for the alleged harms since this Court has recently
    determined that the original Defendants -- i.e., NMFS et. al. --
    lack    the   authority       to   force    the   Council     to    take    action.        See
    Anglers Conservation Network v.                  Pritzker,    13 9 F.      Supp.    3d 102
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    (D.D.C.    2015),         Civ. No.      14-509, Dkt. No.              58. The core facts and
    legal    issues      remain the            same:    river herring and shad have not
    been     added       to     the     Atlantic        herring          FMP       thereby      violating,
    according to Plaintiffs, the MSA, NEPA and APA.
    B. Amendment Would Not Cause Undue Delay.
    Another      factor        weighing        strongly         in     favor     of     adding    the
    amendments is that granting Plaintiffs'                              request would not cause
    undue    delay or otherwise                 impede       the    efficient           adjudication of
    this    case.    As mentioned above,                   the proposed amendments                     do not
    radically alter the original Complaint and,                                 as a result,           likely
    will    not     require         NMSF      and    the     other       original        Defendants        to
    expend a substantial amount of time and resources to respond to
    the    amended allegations.                Further,       Plaintiffs have                 requested to
    amend their Complaint early in their challenge of Amendment 5 to
    the Atlantic herring FMP.                   The Parties have not yet briefed the
    merits    of     this      dispute      and      there    are       no     appeals        or decisions
    pending.        Defendants,            basing       their       entire            argument        against
    amendment       on    the       futility        exception       to       the      liberal       amendment
    standard,       do not attempt to argue that the proposed amendments
    would    cause       undue        delay.     See     Opp.      at    7     n. 1     (" [B] ecause     the
    proposed       amendment          would     be     futile,     the       Court      need     not    reach
    those     issues          [of      undue        delay     or        prejudice]            and     Federal
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    Defendants do not address them here[.]"). Simply put, permitting
    Plaintiffs to amend their Complaint would not cause undue delay
    in the adjudication of this matter.
    C. The Proposed        Amendments    Are   Not    Unduly   Prejudicial      to
    Defendants.
    For similar reasons, the Court also finds that the proposed
    amendments    will   not    unduly    prejudice     Defendants.      Because    the
    proposed     additions     to   the   Complaint       primarily      concern     the
    Council,    the original Defendants will not be surprised by any
    substantially new allegations made against them. With regard to
    the new Defendants,        the Council and its Executive Director have
    been intimately involved in the events described in the original
    Complaint,    namely the discussions and ultimate decision not_ to
    introduce river herring and shad to the Atlantic herring FMP.
    Notably, Defendants and Intervenor-Defendant do not contend that
    the proposed amendments         would prejudice        them   in any way.        See
    generally    Opp.    and    Inter.-Def.      Opp.     Accordingly,     the     Court
    concludes that this factor also favors permitting Plaintiffs to
    amend their Complaint.
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    D.    The Futility of the Proposed Amendments
    Defendants argue that Plaintiffs'                          Motion should be denied
    because        the     proposed          amendments          are     futile.    Specifically,
    Defendants claim that the Council is not an "agency" within the
    purview of the APA and,                  in the alternative, even if the Council
    were an agency,              it did not engage in final agency action.                           See
    Opp.    at 7;        Inter. -Def.      Opp.      at 2-3.      Plaintiffs claim that the
    issue    of        whether    the     Council      is   an agency        is    "effectively a
    question of first              impression.        Never before has a                Council been
    sued,        the     jurisdictional         questions         briefed,        and    a     decision
    issued that squarely addresses whether or not the Council is an
    agency under the APA." Pls.' Reply at 12.
    The        Court     agrees       with     Plaintiffs'         assessment          of     the
    pertinent          legal     issues. 2    The parties          raise    a     number of         novel
    legal questions that would benefit from more targeted briefing
    directly           addressing       the    merits       of     the     dispute.          The    Court
    believes that           the motion to dismiss or summary judgment stage
    would provide a more appropriate forum and enable all parties,
    2
    Defendant-Intervenor argues that Anglers Conservation Network v.
    Pritzker, 
    809 F.3d 664
    (D.C. Cir. 2016) resolved the issue and
    determined that regional fishery management councils are not agencies.
    See Inter.-Def. Opp. at 2. Anglers, however, is not precisely on
    point. In that case, the regional council was not a defendant and the
    Court of Appeals specifically noted that the plaintiffs "d[id] not
    contend that the Council is itself a federal agency within the meaning
    of the APA." 
    Anglers, 809 F.3d at 670
    .
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    including    the   Council      and     its     Executive       Director,      to    fully
    develop the issue of whether or not the Council is an agency for
    purposes    of   the    APA    and    whether    it     engaged       in   final    agency
    action when it declined to include river herring and shad in the
    Atlantic herring FMP. 3 As another court has noted,                        the issue of
    whether    entities     like    the    Council        qualify    as    agencies       is   a
    "close one." See J. H. Miles            &   Co., Inc. v. Brown,            
    910 F. Supp. 1138
    , 1157 (E.D. Va. 1995) . 4
    Accordingly,       the    Court,     in     its     discretion,         finds      that
    permitting the proposed amendments at                   this    stage will          further
    the efficient adjudication of the merits of the case.
    3
    The Court recognizes that courts have, in cases where a regional
    fishery management council was not a party, occasionally opined on
    whether or not a regional council could qualify as an agency for
    purposes of the APA. See, e.g., Anglers Conservation Network v.
    Pritzker, 
    70 F. Supp. 3d 427
    , 437 (D.D.C. 2014); J. H. Miles & Co.,
    Inc. v. Brown, 
    910 F. Supp. 1138
    , 1159 (E.D. Va. 1995). In each of
    those cases however, the issue was not squarely presented to the
    court.
    4Moreover, this Court has already ruled that "[a]lthough amendments to
    fishery management    plans  originate with    the  regional  fisheries
    management councils, 16 U.S. § 1852(h) (1), ultimate responsibility for
    the details of any amendment - including the decision to add certain
    stocks to a fishery - rests with NMFS." 
    Anglers, 139 F. Supp. 3d at 112
    (citing Flaherty v. Bryson, 
    850 F. Supp. 2d 38
    , 54 (D.D.C. 2012)).
    To this Court's knowledge, the Court of Appeals has not dealt with
    this particularly difficult issue that still remains regarding the
    interpretation of the MSA.
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    IV.   CONCLUSION
    For the foregoing reasons,   Plaintiffs' Motion for Leave to
    File Third Amended and Supplemental Complaint shall be granted.
    An Order shall accompany this Memorandum Opinion.
    August 21, 2017
    United States District Judge
    Copies to: attorneys on record via ECF
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Document Info

Docket Number: Civil Action No. 2011-0660

Citation Numbers: 322 F.R.D. 44

Judges: Judge Gladys Kessler

Filed Date: 8/21/2017

Precedential Status: Precedential

Modified Date: 1/13/2023