AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 69

MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Memorandum in Support of Public.Resource.Org's Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction, #2 Statement of Material Facts, #3 Statement of Disputed Facts, #4 Objections to Evidence, #5 Declaration of Carl Malamud, #6 Declaration of Matthew Becker, #7 Request for Judicial Notice, #8 Text of Proposed Order Granting Public.Resource.Org's Motion for Summary Judgment and Denying Plaintiffs' Motion for Summary Judgment and Permanent Injunction)(Bridges, Andrew)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC., and
NATIONAL COUNCIL ON MEASUREMENT IN
EDUCATION, INC.,
Plaintiffs,
v.
PUBLIC.RESOURCE.ORG,
Defendant.

Case No. 1:14-CV-00857-TSC-DAR
REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDANTCOUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
MOTION FOR SUMMARY
JUDGMENT AND OPPOSITION TO
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND
PERMANENT INJUNCTION
Action Filed: May 23, 2014

Pursuant to Federal Rule of Evidence 201(b) and the authorities cited below, DefendantCounterclaimant Public.Resource.Org respectfully requests that the Court take judicial notice of
each of the following documents in connection with its Motion for Summary Judgment and
Opposition to Plaintiffs’ Motion for Summary Judgment and Permanent Injunction:
1.

The “Incorporation by Reference” webpage of the Office of the Federal Register,

http://www.archives.gov/federal-register/cfr/ibr-locations.html, a true and correct copy of which
is attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 65.
2.

The New York Times article “Putting a Number on Federal Education Spending,”

by Justin Delisle, published February 27, 2013, at http://economix.blogs.nytimes.com/2013
/02/27/putting-a-number-on-federal-education-spending/, a true and correct copy of which is
attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 66.
3.

The webpage entitled “Federal Pell Grant Program—Funding Status” on the U.S.

Department of Education website, at http://www2.ed.gov/programs/fpg/funding.html, a true and

1

correct copy of which is attached to Public Resource’s Index of Consolidated Exhibits as
Exhibit 67.
4.

The webpage entitled “What are Title IV Programs?” on the U.S. Department of

Education website, at http://federalstudentaid.ed.gov/site/front2back/programs/programs
/fb_03_01_0030.htm, a true and correct copy of which is attached to Public Resource’s Index of
Consolidated Exhibits as Exhibit 68.
5.

The U.S. Senate Committee on Health, Education, Labor & Pensions 2012 report

entitled “For Profit Higher Education: The Failure to Safeguard the Federal Investment and
Ensure Student Success,” Executive Summary, https://www.help.senate.gov/imo/media/for_
profit_report/ExecutiveSummary.pdf, a true and correct copy of which is attached to Public
Resource’s Index of Consolidated Exhibits as Exhibit 69.
6.

A letter from Lynn B. Mahaffie, Deputy Assistant Secretary for Policy, Planning,

and Innovation, U.S. Department of Education, DCL ID: GEN-15-09, on the subject of “Title IV
Eligibility for Students Without a Valid High School Diploma Who Are Enrolled in Eligible
Career Pathway Programs,” dated May 22, 2015, at https://ifap.ed.gov/dpcletters/GEN1509.html,
a true and correct copy of which is attached to Public Resource’s Index of Consolidated Exhibits
as Exhibit 70.
7.

An August 2009 report of the U.S. Government Accountability Office, entitled

“PROPRIETARY SCHOOLS: Stronger Department of Education Oversight Needed to Help
Ensure Only Eligible Students Receive Federal Student Aid,” at http://www.gao.gov/new.items
/d09600.pdf, a true and correct copy of which is attached to Public Resource’s Index of
Consolidated Exhibits as Exhibit 71.
8.

“Program Integrity Issues,” Federal Register, available at: https://www.federal

register.gov/articles/2010/10/29/2010-26531/program-integrity-issues#h-4, a true and correct
copy of which is attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 72.
9.

Internet Engineering Task Force Request for Comments 7231, "Hypertext

Transfer Protocol (HTTP/1.1): Semantics and Content" § 4.3 (June 2014), a true and correct
copy of which is attached to Public Resource’s Index of Consolidated Exhibits as Exhibit 73.
A district court may take judicial notice of facts that are “not subject to reasonable
dispute in that [they are] either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b). Under this rule, it is well established
that “matters of public record . . . [are] well within the range of judicial notice.” Bebchick v.
Washington Metro. Area Transit Comm’n, 485 F.2d 858, 880 (D.C. Cir. 1973).
All of the exhibits listed above are matters of public record. Exhibits 65, 67–72 are pages
from government websites. This Court has “frequently taken judicial notice of information
posted on official public websites of government agencies.” Pharm. Research & Manufacturers
of Am. v. United States Dep't of Health & Human Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014)
(citing Cannon v. District of Columbia, 717 F.3d 200, 205 n. 2 (D.C. Cir. 2013)). Exhibit 66 is
an article from the New York Times reporting on federal student aid spending. The Court may
take judicial notice of facts about government action reported in newspaper articles. See
Washington Post v. Robinson, 935 F.2d 282, 291 (D.C. Cir. 1991). Exhibit 73 is a voluntary
industry standard that defines the communications protocol used by every World Wide Web
browser and server. Widely used industry standards are another proper subject of judicial notice.
See Harmon v. Hilton Grp., No. C-11-03677 JCS, 2011 WL 5914004, at *7 (N.D. Cal. Nov. 28,
2011) aff'd sub nom. Harmon v. Hilton Grp., PLC, 554 Fed. Appx. 634 (9th Cir. 2014) (taking

judicial notice of newspaper industry standards document); Boen Hardwood Flooring, Inc. v.
United States, 357 F.3d 1262, 1264 (Fed. Cir. 2004) (taking judicial notice of “Voluntary
Product Standards” document concerning the composition of plywood).
For these reasons, Public.Resource.Org respectfully requests that the Court take judicial
notice of the documents listed above.
Dated: January 21, 2016

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Sebastian E. Kaplan (pro hac vice pending)
[e-mail]
Matthew Becker (admitted)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

SF/5546620.4