AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 169

MOTION to Take Judicial Notice by NATIONAL FIRE PROTECTION ASSOCIATION, INC. (Attachments: #1 Exhibit 1 to Plaintiffs' Request For Judicial Notice)(Ehler, Rose)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING
AND MATERIALS d/b/a/ ASTM
INTERNATIONAL;
NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR
CONDITIONING ENGINEERS,

Case No. 1:13-cv-01215-TSC

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
PLAINTIFFS’ REQUEST FOR JUDICIAL NOTICE
Pursuant to Federal Rule of Evidence 201(b), Plaintiffs/Counter-Defendants American
Society for Testing and Materials (“ASTM”), National Fire Protection Association, Inc.
(“NFPA”), American Society of Heating, Refrigerating, and Air Conditioning Engineers
(“ASHRAE”) (collectively, “Plaintiffs”) respectfully request that the Court take judicial notice of
the following document in connection with Plaintiffs’ Motion for Summary Judgment and
Opposition to Defendants’ Motion for Summary Judgment: Executive Office of the President,
Office of Management and Budget, Revision of OMG Circular A-119: Federal Participation in

the Development and Use of Voluntary Consensus Standards and in Conformity Assessment
Activities (“Revised OMB Circular”).1 A true and correct copy is attached hereto as Exhibit 1.
Federal Rule of Evidence 201(b) provides that this Court may take judicial notice of facts
that are “not subject to reasonable dispute” because they are either “generally known within the
trial court’s territorial jurisdiction” or “can [] accurately and readily [be] determined from
sources whose accuracy cannot reasonably be questioned.” Specifically, courts may “take
judicial notice of materials published in the Federal Register.” Banner Health v. Sebelius, 797 F.
Supp. 2d 97, 112 (D.D.C. 2011); 44 U.S.C. § 1507 (“The contents of the Federal Register shall
be judicially noticed.”). Courts may also take judicial notice of “government documents
available from reliable sources.” Hamilton v. Paulson, 542 F. Supp. 2d 37, 52 n.15 (D.D.C.
2008) (taking judicial notice of a document from the website of the United States Office of
Personnel Management), rev’d on other grounds sub. nom. Hamilton v. Geithner, 666 F.3d 1344
(D.C. Cir. 2012).
The Revised OMB Circular is properly the subject of judicial notice. It is published on a
government website, announced in the Federal Register, and not subject to reasonable dispute.
Plaintiffs seek judicial notice now because the Revised OMB Circular was only recently issued
and updates the 1998 OMB Circular that Plaintiffs cite in their Motion for Summary Judgment.
See Pls.’ Mot. Summary Judgment at 9, 21. In particular, the Revised OMB Circular provides
additional guidance to federal agencies considering incorporating standards by reference and
instructions on how to work with standard development organizations to ensure incorporated
standards are reasonably available. Exhibit 1 at 21.

1

The Revision was made effective on January 27, 2016 and announced in the Federal Register. 81 Fed. Reg. 4673
(Jan. 27, 2016). The revised Circular is available at
https://www.whitehouse.gov/sites/default/files/omb/inforeg/revised_circular_a-119_as_of_1_22.pdf.

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For these reasons, Plaintiffs respectfully request that the Court take judicial notice of the
Revised OMB Circular.

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Dated: February 8, 2016

Respectfully submitted,
/s/ J. Kevin Fee
Michael F. Clayton (D.C. Bar: 335307)
J. Kevin Fee (D.C. Bar: 494016)
Jordana S. Rubel (D.C. Bar: 988423)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel For American Society For Testing And Materials
d/b/a/ ASTM International
/s/ Rose Leda Ehler
Anjan Choudhury (D.C. Bar: 497271)
Munger, Tolles & Olson LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071
Tel: [phone]
Email: [e-mail]
Kelly M. Klaus
Jonathan H. Blavin
Nathan M. Rehn
Rose Leda Ehler
Munger, Tolles & Olson LLP
560 Mission St., 27th Floor
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]
Counsel for National Fire Protection Association, Inc.
/s/ Joseph R. Wetzel
Jeffrey S. Bucholtz (D.C. Bar: 452385)
King & Spalding LLP
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1700 Pennsylvania Avenue, NW, Ste. 200
Washington, DC 20006-4707
Tel: [phone]
Email: [e-mail]
Kenneth L. Steinthal
Joseph R. Wetzel
Blake Cunningham
King & Spalding LLP
101 Second Street, Ste. 2300
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel for American Society of Heating, Refrigerating,
and Air Conditioning Engineers

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