OCEANA, INC. v. GUTIERREZ et al

Filing 108

MEMORANDUM OPINION AND ORDER granting 106 plaintiff Oceana's motion to strike the government defendants' notice of supplemental authority. Signed by Judge Paul L. Friedman on August 12, 2014. (MA)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
PENNY PRITZKER,
)
1
United States Secretary of Commerce, et al.,
)
)
Defendants,
)
)
and
)
)
FISHERIES SURVIVAL FUND
)
)
Defendant-Intervenor.
)
)
_________________________________________ )
OCEANA, INC.,

Civil Action No. 08-1881 (PLF)

MEMORANDUM OPINION AND ORDER
The government defendants filed a notice of supplemental authority on
May 12, 2014 [Dkt. No. 105], in which they alerted the Court to the issuance of a proposed rule
by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service, published at
79 Fed. Reg. 27060 (May 12, 2014). Plaintiff Oceana has filed a motion to strike [Dkt. No. 106]
this notice of supplemental authority, which the government defendants oppose [Dkt. No. 107].
The Court has considered the defendants’ notice, Oceana’s motion to strike, and
the defendants’ opposition to the motion. The Court largely agrees with the arguments made in
numbered paragraphs 1, 2, and 3 of Oceana’s motion to strike. On the other hand, the Court
1

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court
substitutes as defendant the current Secretary of Commerce, Penny Pritzker, for former Acting
Secretary Rebecca M. Blank.

acknowledges the defendants’ point that they simply have “brought the proposed rule to the
attention of the Court because it is a publicly available document published after the close of
briefing which is relevant to a disputed issue in this case.” Dkt. No. 107, at 2. The Court of
course agrees that it may take judicial notice of the fact that the Fisheries Service and Wildlife
Service have issued this proposed rule, which appears publicly in the Federal Register.
See, e.g., D.C. Professional Taxicab Drivers Ass’n v. Dist. of Columbia, 880 F. Supp. 2d 67, 72
(D.D.C. 2012). Nevertheless, in view of Oceana’s arguments, and given the Court’s skepticism
that the proposed rule is “relevant to a disputed issue in this case,” the Court will grant Oceana’s
motion to strike. Accordingly, it is hereby
ORDERED that plaintiff Oceana’s motion to strike [Dkt. No. 106] the
government defendants’ notice of supplemental authority is GRANTED.
SO ORDERED.

/s/_______________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: August 12, 2014

2