Conservation Force v. Salazar ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CONSERVATION FORCE, et al.,
Plaintiffs,
v. Civil Action No. 09-496 (JDB)
KENNETH SALAZAR, in his official
capacity as Secretary of the United States
Department of the Interior, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs -- organizations and individuals that support sustainable hunting of the
Canadian wood bison -- have brought suit alleging that the Secretary of the Department of the
Interior has violated several provisions of the Endangered Species Act of 1973 ("ESA" or "the
Act"), 16 U.S.C. § 1531 et seq., in his treatment of that species. The Canadian wood bison is
currently listed as "endangered" under the Act. In 2007, the Canadian National Wood Bison
Recovery Team petitioned to "downlist" the wood bison to "threatened," but the Secretary has
not yet made a final determination on the petition. Plaintiffs contend that the Secretary's failure
to act on the petition violates the ESA. Several individual plaintiffs also challenge as unlawful
the Secretary's failure to process their applications to import wood bison hunting trophies. For
the reasons explained below, the Court will grant defendants' motion to dismiss, and will deny
plaintiffs' motion for summary judgment.
-1-
BACKGROUND
I. Statutory and Regulatory Background
The ESA is "the most comprehensive legislation for the preservation of endangered
species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). It is
intended to "provide a means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved, [and] to provide a program for the conservation of
such endangered species and threatened species." 16 U.S.C. § 1531(b). To this end, the Act
directs the Secretary to classify species whose survival is in danger as "endangered" or
"threatened." See 16 U.S.C. § 1533.1Individuals may petition the Secretary to list, downlist, or delist species. See id. §
1533(b)(3). After receiving any such petition, the Secretary must, "[t]o the maximum extent
practicable," make a finding within 90 days "as to whether the petition presents substantial
scientific or commercial information indicating that the petitioned action may be warranted"
("90-day finding"). 16 U.S.C. § 1533(b)(3)(A). And "[w]ithin 12 months after receiving a
petition that is found . . . to present substantial information indicating that the petitioned action
may be warranted," the Secretary must determine whether the petitioned action is warranted, is
not warranted, or is warranted but is precluded by pending proposals concerning other species
("12-month finding"). Id. § 1533(b)(3)(B).
The ESA also generally prohibits the importation of endangered and threatened species,
1
A species is "endangered" if it "is in danger of extinction throughout all or a significant
portion of its range." 16 U.S.C. § 1532(6). A species is "threatened" if it "is likely to become an
endangered species within the foreseeable future throughout all or a significant portion of its
range." Id. § 1532(20).
-2-
including hunting trophies. See id. § 1538(a)(1)(A), (c)(2); 50 C.F.R. §§ 17.21(b), 17.32.
Certain species may be imported under limited circumstances, however -- such as "for scientific
purposes or to enhance the propagation or survival of the affected species." 16 U.S.C. §
1539(a)(1)(A). Individuals seeking to import a listed species must apply for a permit and satisfy
a number of application requirements. See id. § 1539(a); 50 C.F.R. §§ 17.22, 17.31(a).
II. Factual Background
The Canadian wood bison, found in portions of northwestern Canada, was by the late
1800s hunted nearly to extinction. See 74 Fed. Reg. 5908, 5909 (Feb. 3, 2009). It was first
classified as an "endangered" species in 1970 under the statutory predecessor to the ESA, and has
remained so listed under the ESA. Id.Between 2000 and 2004, the four individual plaintiffs to this action purchased wood
bison hunts in Canada, which permits limited hunting of the wood bison, and each then
successfully hunted a wood bison. Am. Compl. ¶¶ 15-18. With Conservation Force's assistance,
they each applied to import their wood bison trophies into the United States. Am. Compl. ¶¶ 15-
18. The Secretary had not processed these import permit applications by the time this action was
filed.
In November 2007, the Canadian National Wood Bison Recovery Team ("the Team")
petitioned the Secretary to downlist the wood bison from endangered to threatened.2 The Team's
petition stated that the wood bison's "populations are healthy," its "habitat remains plentiful," and
conservation "recovery and management plans are being implemented." Id. at 5909-10. In
2
Plaintiffs have no affiliation with the Team, and they do not appear to have been
involved in the downlisting petition.
-3-
February 2009, the Secretary, acting through the United States Fish and Wildlife Service ("the
Service"), issued a 90-day finding. This finding concluded that the Team's downlisting petition
"presents substantial scientific evidence and commercial information indicating that reclassifying
the wood bison from endangered to threatened may be warranted." Id. at 5910. The Secretary
has not yet issued his 12-month finding on the petition.
Plaintiffs brought this action in March 2009, a month after the Secretary issued his 90-day
finding. They contend that the Secretary's failure to issue a 12-month finding on the Team's
downlisting petition violates the ESA. Am. Compl. at pp. 19-20, 25-28. The individual
plaintiffs also claim that the Secretary's then-failure to process their applications to import wood
bison hunting trophies violates both the ESA and their Due Process rights. Am. Compl. at pp.
21-24.
Plaintiffs moved for summary judgment before defendants responded to their amended
complaint. Three days after plaintiffs filed their motion, the Service denied the individual
plaintiffs' applications for import permits. See Defs.' Mot. to Dismiss ("Defs.' Mot.") [Docket
Entry 11], Ex. 1 (permit denials). As to each application, the Service concluded that "there is
insufficient evidence to support the concept that this import of a sport-hunted trophy would
provide a 'conservation' benefit to the wood bison." Id. at 1. Defendants subsequently filed a
motion to dismiss on jurisdictional grounds, as well as a cross-motion for summary judgment
raising the same issues.
STANDARD OF REVIEW
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --
plaintiffs here -- bears the burden of establishing that the court has jurisdiction. See US Ecology,
-4-
Inc. v. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative
obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney
Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). "'[P]laintiff's
factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion'
than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at
13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the
complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the
factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. Food and Drug
Admin, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005).
DISCUSSION
I. The 12-Month Finding
Plaintiffs' primary contention is that the Secretary has failed to comply with the ESA's 12-
month finding requirement. See 16 U.S.C. § 1533(b)(3)(B); Pls.' Mot. for Summ. J. ("Pls.'
Mot.") [Docket Entry 9], at 12-15. As they point out, although the Team submitted its
downlisting petition in November 2007, and the Secretary issued a 90-day finding in February
2009, the Secretary still has not issued a 12-month finding.
The Secretary contends that plaintiffs cannot challenge his failure to issue a 12-month
finding, however, because they did not comply with the ESA's notice requirement. Under the
Act, a prospective plaintiff must provide written notice to the Secretary at least sixty days before
suing for an alleged ESA violation. See 16 U.S.C. § 1540(g)(2). This requirement is "mandatory
-5-
and jurisdictional." Research Air, Inc. v. Norton, 2006 WL 508341, at *10 (D.D.C. 2006) (citing
Common Sense Salmon Recovery v. Evans, 329 F. Supp. 2d 96, 104 (D.D.C. 2004)); accord Sw.
Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998).3
Plaintiffs submitted an intent to sue letter on January 13, 2009, more than sixty days
before they filed suit. See Defs.' Mot., Ex. 2 (Intent to Sue Letter), 1. But plaintiffs' intent to sue
letter lists only two complaints related to the wood bison: the Secretary's then-failure to issue a
90-day finding on the downlisting petition, and the Secretary's then-failure to process plaintiffs'
applications to import wood bison trophies. See id. at 1-2.
Plaintiffs do not dispute that their intent to sue letter does not explicitly challenge the
Secretary's failure to issue a 12-month finding. Plaintiffs insist, however, that their letter "made
blatantly clear that Conservation Force intended to object to any further violation of ESA
procedural requirements." Pls.' Opp'n to Defs.' Mots. ("Pls.' Opp'n") [Docket Entry 20], at 19-21
(citing Water Keeper Alliance v. Dep't of Def., 271 F.3d 21, 30 (1st Cir. 2001) (notice sufficient
where it made "clear that [plaintiff] intended to challenge an ongoing delinquency")). But the
letter did not do so. Its only reference to the Team's downlisting petition is: "This is also notice
for the failure of the [Secretary] to make a timely 90-day determination on the petition to
downlist the [Canadian] wood bison . . . ." Intent to Sue Letter at 2. The letter does not mention
any other delinquency related to the downlisting petition. Nor is it vaguely worded, leaving
ambiguous whether the objection is to the absent 90-day finding, or to delays in addressing the
3
Because the ESA's notice provision is jurisdictional, the Court may address this issue
without resolving the Secretary's argument that plaintiffs also lack standing to challenge his
failure to issue a 12-month finding. See Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549
U.S. 422, 431 (2007) ("[A] federal court has leeway to choose among threshold grounds for
denying audience to a case on the merits." (internal quotation marks omitted)).
-6-
petition more generally. Accordingly, the notice in no way "made blatantly clear" that plaintiffs
intended to sue over any future procedural violations concerning the downlisting petition.4
It is true that, because the Secretary had not yet issued his 90-day finding when plaintiffs
submitted their intent to sue letter, they could not have known whether a 12-month finding was
required as to the Team's petition. See 16 U.S.C. § 1533(b)(3) (12-month finding required only
where 90-day finding concludes that a petition "presents substantial information indicating that
the petitioned action may be warranted"). This does not alter the analysis, however. A notice of
intent to sue for the failure to issue a 90-day finding does not provide proper notice of intent to
sue for the subsequent failure to issue a 12-month finding. See Friends of Animals v. Salazar,
670 F. Supp. 2d 7 (D.D.C. 2009). In Friends of Animals, the plaintiff had submitted a notice of
intent to sue letter for the Secretary's failure to issue a timely 90-day finding. "Defendants had
not yet missed the deadline for the twelve-month finding" when the plaintiff sent its intent to sue
letter -- indeed, because there was no 90-day finding the plaintiff could not have known whether
a 12-month finding would be required. Id. at 13. Thus, "admittedly and understandably, Plaintiff
did not notify Defendants of its intent to sue" for the failure to issue a 12-month finding. Id.Still, the court found that the plaintiff's "failure to provide sixty-days' notice prior to bringing its
claims with respect to the 12-month finding means those claims must be dismissed." Id. So too
4
Plaintiffs also state, without citation, that they "had a longstanding objection to
Defendants' failure to downlist." Pls.' Opp'n at 20. Accordingly, they suggest that the letter
provided proper notice because it "incorporate[d] by reference . . . all the prior pleas, requests,
comments by Conservation Force and those it represents and diplomatic protest by foreign
nations." Intent to Sue Letter at 2; see Pls.' Opp'n at 19. But even assuming that documents
incorporated by reference could ever "adequately inform the agency of the exact grievances
against it," Water Keeper Alliance, 271 F.3d at 30, plaintiffs have submitted no evidence to this
Court concerning their prior pleas or comments.
-7-
here, where the need for a 12-month finding remained speculative when the intent to sue letter
was submitted on January 13, 2009.
Moreover, because plaintiffs' intent to sue letter did not notify the Secretary that they
intended to challenge his subsequent failure to issue a 12-month finding, it would be unfair to
permit this claim to proceed. "The purpose of the 60-day notice provision is to put the agencies
on notice of a perceived violation of the statute and an intent to sue." Sw. Ctr. for Biological
Diversity, 143 F.3d at 520 (internal quotation marks omitted). "When given notice, the agencies
have an opportunity to review their actions and take corrective measures if warranted. The
provision therefore provides an opportunity for settlement or other resolution of a dispute
without litigation." Id. (internal quotation marks omitted). This policy is borne out here: several
weeks after plaintiffs sent their intent to sue letter, the Secretary issued the very 90-day finding
that plaintiffs sought. See 74 Fed. Reg. at 5910. But plaintiffs gave the Secretary no such
"opportunity to review [his] actions and take corrective measures" relating to his absent 12-
month finding for the wood bison. The Court therefore will dismiss plaintiffs' claim that the
Secretary's failure to issue a 12-month finding violates 16 U.S.C. § 1533.5The Court will also dismiss, for the same reasons, plaintiffs' additional claims that the
Secretary's failure to issue a 12-month finding on the wood bison petition violates several other
ESA provisions. See Pls.' Opp'n at 22-23; Am. Compl. at pp. 25-28. As explained above,
plaintiffs' intent to sue letter challenged only the Secretary's failure to issue a 90-day finding and
5
Of course, nothing prevents plaintiffs, after ensuring that they have provided proper
statutory notice pursuant to 16 U.S.C. § 1540(g)(2), from filing an additional suit to compel the
12-month finding. The Court notes, however, that the Secretary has represented that he is able to
submit a 12-month finding by September 15, 2010 -- less than four months from now. See Defs.'
Mot. for Summ. J. ("Defs.' Mot.") [Docket Entry 18], at 35.
-8-
to process plaintiffs' applications to import wood bison trophies. See Intent to Sue Letter at 1-2.
It did not suggest that the Secretary's failure to issue a 12-month finding violates any other ESA
provisions.6
II. Plaintiffs' Permit Applications
Plaintiffs also contend that the Service's failure to process their applications to import
wood bison trophies is contrary to the ESA and violates Due Process. While this litigation was
pending, however, the Service denied the four individual plaintiffs' applications for import
permits. Accordingly, defendants contend that these claims are moot: "Plantiffs have already
obtained the specific relief -- the processing of their permit applications -- requested in their
Amended Complaint." Defs.' Mot. at 13.
Plaintiffs offer two arguments in opposition. They first note that their prayer for relief
seeks a declaratory judgment that "the failure to process wood bison trophy import permits
pursuant to existing regulations is a violation of the ESA, APA, and Constitution." Pls.' Opp'n at
11 (citing Am. Compl. at p. 29). According to them, then, they still "have not received all of the
relief they requested with regard to those claims." Id.6
Plaintiffs suggest that these additional claims concerning the 12-month finding arise not
only under the ESA, but also under the APA. See Pls.' Mot. at 21-22. This would, in theory,
permit such claims to avoid the ESA's notice provision. But the APA permits courts to review
"final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704(emphasis added). Here, the ESA's citizen-suit provision provides an adequate remedy for
plaintiffs' claims. See 16 U.S.C. § 1540(g)(1) (citizens may sue to enjoin violations of the ESA
and to compel the Secretary to comply with his duties under the Act). Therefore, because
"'review of [plaintiffs'] claim is available under the [ESA], it is not subject to review under the
APA.'" Coos County Bd. of County Comm'rs v. Kempthorne, 531 F.3d 792, 810 (9th Cir. 2008)
(quoting Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001)) (emphasis removed) (second
alteration in Coos County); see also Bowen v. Massachusetts, 487 U.S. 879, 903 (1988)
("Congress did not intend the general grant of review in the APA to duplicate existing procedures
for review of agency action.").
-9-
This argument is unpersuasive. "In determining whether a request for declaratory relief
has become moot, 'the question . . . is whether the facts alleged, under all the circumstances,
show that there is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" Conyers v.
Reagan, 765 F.2d 1124, 1128 (D.C. Cir. 1985) (quoting Preiser v. Newkirk, 422 U.S. 395, 402
(1975) (emphasis in Preiser)). Now that the Service has processed plaintiffs' permit applications,
the parties are no longer legally adverse to one another, and there no longer exists any immediate,
actual dispute that warrants declaratory relief. Indeed, the relief plaintiffs seek -- a declaration
that a failure to act timely on permit applications is unlawful -- would be an improper advisory
opinion. See Lawyer v. Dep't of Justice, 521 U.S. 567, 579-80 (1997) ("The real value of the
judicial pronouncement -- what makes it a proper judicial resolution of a case or controversy
rather than an advisory opinion -- is in the settling of some dispute which affects the behavior of
the defendant towards the plaintiff." (internal quotation marks omitted)).
Plaintiffs also contend that the Court may still adjudicate their permit-related claims
because it was the Service's voluntary cessation of the alleged unlawful conduct -- the failure to
timely process permit applications -- that rendered this case moot. "It is well settled that a
defendant's voluntary cessation of a challenged practice does not deprive a federal court of its
power to determine the legality of the practice." Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotation marks omitted). This is so
because, "while the defendant's unilateral cessation of the challenged conduct may grant the
plaintiff relief, the defendant is free to return to [its] old ways -- thereby subjecting the plaintiff to
the same harm but, at the same time, avoiding judicial review." Qassim v. Bush, 466 F.3d 1073,
-10-
1075 (D.C. Cir. 2006) (per curiam) (internal quotation marks omitted) (alteration in original).
Thus, when a defendant has voluntarily ceased the allegedly unlawful conduct, a case is moot
"only if the defendant shows that: (1) 'there is no reasonable expectation . . . that the alleged
violation will recur,' and (2) 'interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation.'" Larsen v. United States Navy, 525 F.3d 1, 4 (D.C. Cir.
2008) (quoting County of L.A. v. Davis, 440 U.S. 625, 631 (1979)). Moreover, to defeat
mootness the alleged violation must be reasonably expected to recur against the plaintiff, and not
simply others who may one day be in his place. See Qassim, 466 F.3d at 1076.7
In this case, the Service can only again delay the processing of plaintiffs' import permit
applications if plaintiffs again apply for such permits.8 But there is no indication in the record
that the individual plaintiffs whose permit applications have now been processed will ever hunt
the wood bison (or any other listed species) again, or that they will apply to import their trophies.
And even assuming that the Service needs to show that none of the plaintiffs to this
action -- not just those who have previously applied for import permits -- can reasonably expect
to be subject to the alleged violation, it has done so. The only evidence in the record potentially
relevant to any plaintiffs' future intentions regarding import permits is a declaration by John
Jackson, III, plaintiffs' attorney and the founder and chairman of Conservation Force. See Pls.'
7
The voluntary cessation exception arguably is not available here at all. Rather, given
that plaintiffs sought to force the Service to take specific action, its processing of their import
permit applications appears "more accurately characterized as the provision of appropriate relief
to petitioner than as the 'cessation of illegal conduct.'" Natural Res. Def. Council, Inc. v. Nuclear
Reg. Comm'n, 680 F.2d 810, 814 (D.C. Cir. 1982). Nonetheless, defendants have not raised this
argument, and hence the Court will assume that the exception applies.
8
Plaintiffs do not dispute that the processing of their permit applications has "completely
and irrevocably eradicated the effects of the alleged violation." See Larsen, 525 F.3d at 4.
-11-
Opp'n, Decl. of John Jackson, III ("Jackson Decl."). Jackson's declaration states that
Conservation Force "prepared and filed all the Wood Bison trophy import permits that are at
issue" in this case. Jackson Decl. at ¶ 4. But while this shows Conservation Force's past efforts
to obtain import permits, it offers no evidence that the organization intends to do so again.9
In fact, the only portions of Jackson's declaration that even arguably suggest that any
plaintiffs intend to apply for import permits in the future are statements concerning the Wild
Sheep Foundation and Grand Slam Club/Ovis, two organizational plaintiffs. Jackson states that
the Wild Sheep Foundation's "members want to hunt the bison if, but generally only if, they can
import their trophies." Jackson Decl. ¶ 9. Similarly, he offers that Grand Slam Club/Ovis "has
many members who would like to hunt wood bison if, and generally only if, they are able to
bring their trophy back to the United States." Id. ¶ 10.
Even making the charitable assumption that these statements alone could supply a
reasonable expectation that members of the two organizations will apply for import permits in
the future, however, the Court cannot consider them. Federal Rule of Civil Procedure 56(e)
states that "[a] supporting or opposing affidavit [on summary judgment] must be made on
personal knowledge [and] set out facts that would be admissible in evidence." And "[a]lthough
the rule's directive with respect to admissibility of an affidavit's contents on summary judgment
9
In their opposition to the government's motions, plaintiffs offer, without citation, that
"[m]embers of Conservation Force will hunt Wood Bison in the future, and Conservation Force
will again file permits on their behalf." Pls.' Opp'n at 12. But "[t]he mere arguments of counsel"
-- even counsel who may have personal knowledge -- "are not evidence." Barnette v. Ridge,
2004 WL 3257071, at *6 n.6 (D.D.C. 2004); see also Orson, Inc. v. Miramax Film Corp., 79 F.3d
1358, 1372 (3d Cir. 1996) ("[L]egal memoranda and oral argument are not evidence and cannot
by themselves create a factual dispute sufficient to defeat a summary judgment motion." (internal
quotation marks omitted)).
-12-
has been liberally construed, its requirement of personal knowledge by the affiant is unequivocal,
and cannot be circumvented. An affidavit based merely on information and belief is
unacceptable." Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, 1174 (D.C. Cir. 1981).
Here, Jackson's declaration offers no indication that his representations as to these two
organizations' members are made from personal knowledge. Jackson does not state that he
belongs to, or holds an administrative role in, either organization. Nor does he offer the source
of his statements, or even how he is familiar with these groups. In short, his representations as to
these two organizations' members and their intentions appear on this record to be made upon
belief, not knowledge. This is inadequate. See Harris v. Gonzales, 488 F.3d 442, 446 (D.C. Cir.
2007) (the D.C. Circuit has "expressly held that affidavits based upon belief are inadequate to
support a motion for summary judgment" (citing Londrigan, 670 F.2d at 1174)). Thus, the Court
will not rely on paragraphs nine and ten of Jackson's declaration.10
Without those two paragraphs, there is nothing in the record indicating that any plaintiffs
in this action intend to apply for import permits in the future.11 And without such evidence,
plaintiffs' argument in support of the voluntary cessation exception is merely that if plaintiffs
apply for import permits, it is reasonably likely that the Service will not timely process those
applications. But "'the mere power to reenact a challenged [policy] is not a sufficient basis on
which a court can conclude that a reasonable expectation of recurrence exists. Rather, there must
10
The Court need not address other portions of Jackson's declaration, as they do not affect
the Court's mootness analysis.
11
Given that there is no evidence that plaintiffs intend to apply for import permits, the
Court need not determine whether there is a reasonable expectation that the government would
delay the processing of any such applications.
-13-
be evidence indicating that the challenged [policy] likely will be reenacted.'" Larsen, 525 F.3d at
4 (quoting Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997))
(alterations in Larsen). Absent any indication that plaintiffs will again apply for import permits,
there can be no evidence that the Service will delay processing plaintiffs' applications.
Accordingly, the Court will deny as moot plaintiffs' claims that the Service's failure to process
their import permit applications is unlawful.12
CONCLUSION
For the reasons detailed above, the Court will grant the Secretary's motion to dismiss, and
will deny plaintiffs' motion for summary judgment. The Court will also deny the Secretary's
cross-motion for summary judgment as moot. A separate Order accompanies this Memorandum
Opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: June 7, 2010
12
Plaintiffs do not argue that this case falls into the exception to the mootness doctrine
for cases "capable of repetition yet evading review." See Del Monte Fresh Produce Co. v. United
States, 570 F.3d 316, 321-26 (D.C. Cir. 2009). Indeed, to fall within this exception, a plaintiff
must show that "there [i]s a reasonable expectation that the same complaining party w[ill] be
subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149 (1975). As
explained above, there is no such reasonable expectation here.
-14-