National Pork Producers Council et al v. Jackson

Filing 37

ORDER setting briefing schedule re 13 MOTION to Dismiss for Lack of Jurisdiction filed by Lisa P. Jackson. Brief in Support due by 4/20/09; Brief in Opposition by 4/30/09; Brief in Reply due by 5/5/09. Signed by Magistrate Judge Stephen L. Crocker on 4/14/09. (vob)

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF WISCONSIN

NATIONAL PORK PRODUCERS C O U N C I L , WISCONSIN PORK A S S O C I A T IO N , and DAIRY BUSINESS A S S O C IA T IO N OF WISCONSIN, P l a i n t if f s , v. L IS A P. JACKSON, Adminstrator, United States Environmental Protection A g en c y , D efend an t.

ORD ER 0 9 -c v -7 3 -s lc

Defendant Lisa Jackson has moved to dismiss or transfer this case on the ground that plaintiffs should have filed it in the Court of Appeals for the District of Columbia Circuit. D kt. #13. In her reply brief, defendant raises an argument for the first time that Count I o f plaintiffs' complaint is not justiciable in any court for various reasons. Dkt. #34, at 7-14. A s I noted in my order denying plaintiffs' request to file a sur-reply brief, a reply brief is not th e place to be raising new arguments. However, because jurisdictional arguments cannot be waived, Luna v. United States, 454 F.3d 631, 635 (7 t h Cir. 2006), I will set up a short b riefin g schedule to allow the parties to address the new jurisdictional issues. Defendant m ay have until April 20, 2009 to file an opening brief; plaintiffs may have until April 30 to f i le a response; and defendant may have until May 5 to file a reply. A decision on

defendant's motion to dismiss is stayed until the jurisdictional issues are resolved. However, the parties should not use this as an opportunity to supplement their other arguments in favo r of dismissal or against it; the sole question for the new motion is whether Count I of plaintiffs' complaint is justiciable. E n tered this 14t h day of April, 2009. B Y THE COURT: /s/ S T E P H E N L. CROCKER M agistrate Judge

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