United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided October 5, 2012
RALPH M. MARCUM, ET AL.,
KENNETH LEE SALAZAR, ET AL.,
Appeal from the United States District Court for the District of Columbia
John J. Jackson, III was on the brief for appellants.
Andrew C. Mergen, Allen M. Brabender, and Matthew
Littleton, Attorneys, U.S. Department of Justice, were on the
brief for appellees. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.
Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
EDWARDS.[End Page 2]
EDWARDS, Senior Circuit Judge: On October 8, 2009,
Appellants filed a law suit in the United States District Court for the District of Columbia claiming that the Fish and
Wildlife Service ("FWS") had unlawfully denied their
requests for permits to import hunting trophies taken from
elephant hunts in Zambia in 2005 and 2006. The District
Court rejected Appellants' claims and granted summary
judgment to the Government. Because this matter was unripe
for review when the District Court heard the case and issued
its decision, the record on appeal is incomplete. We therefore
vacate the judgment of the District Court and remand the case
for further consideration.
The facts underlying the parties' dispute are succinctly set forth in a Memorandum Opinion issued by the District
Court on August 30, 2011:
In 2005 and 2006, [Appellants] Ralph Marcum, Walt
Maximuck, Earl Slusser, and Dean Mori each killed at
least one elephant in Zambia for sport and then applied to
FWS for an import permit to import the trophy into the
United States. To import their trophies, [Appellants]
needed a CITES [Convention on International Trade in
Endangered Species of Wild Fauna and Flora] export
permit from Zambia and a CITES import permit from
FWS. Before issuing an import permit for sport-hunted
elephants, FWS must find, among other things, that: (1)
the import "is for purposes that would not be detrimental
to the survival of the species," and (2) "the killing of the
animal whose trophy is intended for import would
enhance survival of the species."[End Page 3]
FWS's Division of Scientific Authority ("DSA," the
designated CITES "Scientific Authority" for the United
States) makes the regulatory "non-detriment" finding and sends it to FWS's Division of Management Authority
("DMA," the designated CITES "Management
Authority" for the United States). This DSA finding is
referred to as an "Advice." DMA considers the DSA
"non-detriment" finding and its own assessment as to
whether the import would "enhance the survival of the species" in deciding whether or not to issue permits. On
May 11, 2005, DSA sent DMA its "General Advice" on sport-hunted elephants in Zambia for calendar year 2005.
After considering [Appellants'] applications as well as
materials submitted by ZAWA [the Zambian wildlife
agency], DSA found several obstacles to making a non-
detriment finding . . . . DSA also relied on the findings of
the 2002 CITES Panel, and found no evidence that the situation in Zambia had materially improved since the
CITES Panel issued its findings about ZAWA's [efforts]
to control poaching. In light of these findings, DSA
concluded that it was unable to make the non-detriment
finding required to permit import of sport-hunted
Just over a week later, FWS informed ZAWA that it
would be unable to issue import permits for sport-hunted
elephants on the basis of the information ZAWA
provided to date, and requested additional information to
address these concerns. In June 2005, ZAWA sent FWS
more information about Zambian elephants. Although
FWS did receive this additional information from
Zambia, it was insufficient for FWS to change [its]
mind on the possibility of issuing import permits for
elephants. FWS gave ZAWA a third chance to address
the outstanding concerns.[End Page 4]
By March 2008, although ZAWA had sent a
responsive report, FWS still hadn't received the
information necessary to support the required non-
detriment and enhancement findings. It gave ZAWA a
fourth opportunity to provide the necessary information.
In September 2008, ZAWA responded with three
additional pages. The following year, at the biannual
Conference of the Parties to CITES, Zambia again
petitioned to downlist its elephant population to
Appendix II, which was again voted down by the Parties.
FWS asked ZAWA a fifth time for further information to
support a non-detriment finding on May 27, 2009.
Having received no further response, FWS proceeded to
process plaintiffs' permit applications.
Marcum v. Salazar, 810 F. Supp. 2d 56, 62""64 (D.D.C. 2011)
(citations and alterations omitted).
Appellants filed suit in District Court on October 8, 2009,
while FWS was still soliciting additional information on their
permit applications. In 2010, while Appellants' suit was
pending in District Court, DSA and DMA completed their
evaluations of Appellants' applications. DSA declined to
make a non-detriment determination and DMA declined to
make an enhancement determination. On March 10, 2010,
FWS denied Appellants' permit applications. On April 14,
2010, Appellants applied for reconsideration of FWS's permit
denials. The request for reconsideration was denied on June
28, 2010. The District Court was aware of these
developments and recounted these various actions in its
decision. See Marcum, 810 F. Supp. 2d at 64""65.
On August 11, 2010, while the case was still before the
District Court, Appellants submitted an administrative appeal[End Page 5]
to the FWS Director pursuant to 50 C.F.R. § 13.29(e), which states that "[a] person who has received an adverse decision
following submission of a request for reconsideration may submit a written appeal to the Regional Director for the region
in which the issuing office is located, or to the Director for
offices which report directly to the Director." Neither
Appellants nor the Government advised the District Court
that, because Appellants still had an administrative appeal
pending with the FWS Director, the agency had yet to take
final action on Appellants' permit applications.
On February 24, 2011, Appellants filed a motion for summary judgment with the District Court. Pls.' Mot. for
Summ. J. (Feb. 24, 2011) (ECF No. 35). In their
memorandum in support of the motion, Appellants intimated
that FWS's June 28, 2010, denial of their request for
reconsideration was a "final agency action" and claimed that
they were entitled to judicial review of that action because
they were "adversely affected" by it. Mem. in Supp. of Pls.'
Mot. for Summ. J., 9 (Feb. 24, 2011) (ECF No. 35-1).
However, Appellants' motion for summary judgment and the
associated memorandum failed to mention that their
administrative appeal before the FWS Director was still
On March 28, 2011, the Government filed a motion for summary judgment with the District Court. Defs.' Mot. for
Summ. J. (Mar. 28, 2011) (ECF No. 37). The Government
asserted that FWS "completed its processing" of Appellants'
applications on March 10, 2010. Defs.' Mem. in Supp. of
Mot. for Summ. J. & in Opp'n to Pls.' Mot. for Summ. J., 16
(Mar. 28, 2011) (ECF No. 37). The Government also
intimated that final agency action was taken when FWS
denied Appellants' request for reconsideration. See id. at 11""
12. The Government's motion for summary judgment[End Page 6]
mirrored Appellants' previously-filed motion in that it failed
to indicate that Appellants still had an administrative appeal
pending before the Director of FWS.
On August 30, 2011, after reviewing the parties'
respective motions for summary judgment, the District Court
upheld FWS's denial of Appellants' permit applications.
Marcum, 810 F. Supp. 2d at 56. In its decision, the District
Court addressed six claims raised by Appellants: Claims I
and III involved various allegations regarding FWS's alleged
failures to properly consider and process Appellants' import
permit applications. See id. at 66""68. Claims II and VI
involved Appellants' attempt to challenge the import permit
denials through the citizen-suit provision of the Endangered
Species Act ("ESA"), 16 U.S.C. § 1540(g)(1). See id. at 68""
71. Claim V involved Appellants' assertion that, "in denying
their permit applications, FWS applied certain "˜requirements
or criteria' in such a way as to create a "˜new policy' or a new
rule requiring formal public notice and comment rulemaking
under the APA [Administrative Procedure Act], 5 U.S.C. §
553(b), and publication in the Federal Register." Id. at 71
(citation omitted); see also id. at 71""72. Claim IV involved
Appellants' allegation "that FWS's denial of their import
permit applications was "˜arbitrary and capricious' because the
imports wouldn't be detrimental to the survival of the species,
and would enhance the survival of the species." Id. at 72
(citation omitted); see also id. at 72""78.
The District Court determined that: Claims I and III were
moot, see id. at 66""68; Claims II and VI were not cognizable
under the citizen-suit provision of the ESA, see id. at 68""71;
Claim V failed because agency adjudications like permitting
decisions do not require notice-and-comment rulemaking, see
id. at 71""72; and Claim IV was unmeritorious because the
agency's actions were not arbitrary and capricious, see id. at[End Page 7]
72""78. Appellants' assertions that DSA and DMA had issued
new non-detriment and enhancement findings in 2011 which,
according to Appellants, suggest that the import of elephants
taken in Zambia in 2011 would be acceptable, see Appellants'
Opp'n & Resp. to Mot. of Defs.-Appellees Req. Judicial
Notice & Cross-Mot. for Add'l Judicial Notice, 4""5 (June 11,
2012); Appellants' Supplement to Opp'n & Resp. (June 13,
2012), were not addressed by the District Court.
On appeal, Appellants have raised a number of issues
contesting the District Court's summary judgment in favor of
the Government. Appellants' principally contend that "[t]he
negative DSA non-detriment finding and the negative DMA
enhancement finding were both substantially arbitrary,
capricious and irrational." Appellants' Final Br. at 57.
According to Appellants, "[n]either [finding] included
consideration of important information provided by Zambia
or even that provided by the individual applicants." Id.
Appellants ask this court to reverse the District Court's summary judgment in favor of the Government and remand to
the District Court to set aside the Government's "defective
and invalid permit denials." Id. at 58.
The Government, in turn, argues for the first time that
"[t]his Court should dismiss [Appellants'] claims on appeal
because they challenge non-final agency actions." Final
Answering Br. of Defs.-Appellees at 16. The Government
points out that Appellants administratively appealed FWS's
decisions to the agency's Director, and that the Director had
not yet decided those appeals when the District Court issued
its decision. The Government contends that, "[i]n this
circumstance, dismissal is the appropriate course." Id. The
Government argues, in the alternative, that "[i]f this Court
decides that the decisions being appealed are final agency[End Page 8]
actions, it should affirm the district court's grant of summary
On June 18, 2012, after Appellants had filed their
opening brief with this court, the Government filed a motion
to dismiss the appeal as moot. Defs.'-Appellees' Mot. to
Dismiss as Moot (June 18, 2012) ("Mootness Motion"). In
this motion, the Government contends that the case is moot
because, on June 18, with this appeal pending, the FWS
Director denied Appellants' administrative appeal. Id. at 2,
Attach. A. In response to this motion, Appellants argue that
dismissing this case as moot will require [Appellants]
to start anew by bringing an entirely new suit to
challenge the denial of their permit applications.
Upon dismissing this case as moot, then, the Court
should clear the path for [Appellants] to relitigate the
issues in [a] new suit.
Appellants' Opp'n to Defs.'-Appellees' Mot. to Dismiss as
Moot, 17 (July 2, 2012). The Government, in turn, "does not
contest the [Appellants'] contention that this Court should
vacate the district court's opinion if it dismisses this appeal as
moot." Defs.'-Appellees' Reply to Mot. to Dismiss as Moot,
2, n.1 (July 9, 2012).
We can only guess why neither the Government nor
Appellants advised the District Court that Appellants had an
administrative appeal pending with the agency during the time
when this case was under consideration by the District Court.
As soon as Appellants sought review by the FWS Director, it
was clear that there was no final action for the District Court
to review. Ongoing agency review renders an agency order[End Page 9]
non-final and judicial review premature. See, e.g., Int'l
Telecard Ass'n v. F.C.C., 166 F.3d 387
, 388 (D.C. Cir. 1999);
Bellsouth Corp. v. F.C.C., 17 F.3d 1487
, 1489 (D.C. Cir.
1994) (stating that when a party seeks "simultaneous judicial
review and agency reconsideration," this is "an invitation to
waste judicial resources"); Wade v. F.C.C., 986 F.2d 1433
1434 (D.C. Cir. 1993) (holding that "whether a party seeks
agency reconsideration before, simultaneous with, or after
filing an appeal or petition for judicial review . . . [the party's]
attempt to seek judicial review must be dismissed as
"˜incurably premature'") (citations omitted). The parties
obviously knew this indeed, the Government now advances
the strange argument that the case should be dismissed as
"moot" because "[t]he non-final decisions challenged in this
case are no longer operative, and this Court cannot grant any
effective relief." Mootness Motion at 5. The parties' failure
to advise the District Court of Appellants' pending
administrative appeal was inexcusable, and it has caused an
extraordinary "waste of judicial resources."
The Government's mootness argument is a non sequitur.
The argument rests on the assumption that an agency action
that is not final is not reviewable. If that is correct, then a
non-final action cannot be rendered moot, because a challenge
to a non-final action never raises a viable claim in the first
place. The claim is not moot; if anything, it is simply not
actionable for want of final agency action. A legal matter is
technically "moot" only when a plaintiff has raised an
actionable claim and intervening events "" such as a settlement, U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship,
513 U.S. 18
(1994), death of a party, Fletcher v. Bryan, 361
(1959), or other changed circumstances, see, e.g.,
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167
, 189""94 (2000); DeFunis v. Odegaard, 416
(1974) make it clear that there is no longer a live[End Page 10]
controversy between the parties. See North Carolina v. Rice,
404 U.S. 244
, 246, (1971) (stating that "federal courts are
without power to decide questions that cannot affect the rights
of litigants in the case before them"). The dispute between
the parties in this case is anything but moot; Appellants are still seeking to obtain import permits for sport-hunted
elephants and the Government still refuses to issue the
The Government certainly could have filed a motion with
the District Court to have Appellants' case dismissed on
grounds of finality. It is well understood that there is a
"strong presumption" that judicial review of administrative
action is available only after a challenged action is "final."
Bell v. New Jersey, 461 U.S. 773
, 778 (1983). Indeed, "final
agency action" is a prerequisite to most causes of action under
the APA. See 5 U.S.C. § 704; see also Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871
, 882 (1990). The APA's finality
requirement is not jurisdictional, however. See Trudeau v.
F.T.C., 456 F.3d 178
, 184 (D.C. Cir. 2006); Reliable
Automatic Sprinkler Co. v. Consumer Prod. Safety Comm'n,
324 F.3d 726
, 731 (D.C. Cir. 2003). Therefore, a "finality"
objection must be raised by the agency in order to be
preserved. In this case, the Government never raised finality
with the District Court and therefore forfeited the objection.
The District Court proceeded with the case because
Appellants obviously had standing to challenge the denial of
their permit applications and the District Court clearly had subject matter jurisdiction to address Appellants' claims.
The real problem in this case is ripeness, something that
the District Court could not have seen because the parties
never advised the court that Appellants had an administrative
appeal pending with the FWS Director.[End Page 11]
Even when an agency has taken final action, a court
may refrain from reviewing a challenge to the action if
the case is unripe for review. Toilet Goods Ass'n v.
Gardner, 387 U.S. 158
(1967). The ripeness inquiry springs from the Article III case or controversy
requirement that prohibits courts from issuing advisory
opinions on speculative claims. See Reg'l Rail
Reorganization Act Cases, 419 U.S. 102
, 138 (1974). In
other words, if a claim challenging final agency action is
not concrete, it may be unfit for judicial review without
regard to whether the complaining party has standing to
pursue the claim. . . . Under Abbott Laboratories, the
courts look to "both the fitness of the issues for judicial
decision and the hardship to the parties of withholding
court consideration." [Abbott Labs. v. Gardner, 387 U.S.
, 149 (1967).]
In applying the fitness prong of the Abbott
Laboratories test, appellate courts consider (1) whether
the issue is "purely legal," rather than one reliant on
agency expertise, id., (2) whether the challenged action is
"final," id., and (3) whether "the impact . . . upon the
petitioners is sufficiently direct and immediate as to
render the issue appropriate for judicial review," id. at
152. In other words, the "fitness" of the issue for judicial
review turns on whether a court's consideration of the
case "would benefit from further factual development"
and "whether judicial intervention would inappropriately
interfere with further administrative action." Ohio
Forestry Ass'n v. Sierra Club, 523 U.S. 726
, 733 (1998); see also Whitman v. Am. Trucking Ass'ns, [531 U.S. 457,
479""80 (2001)]. These considerations protect "the
agency's interest in crystallizing its policy before that
policy is subjected to judicial review and the court's
interests in avoiding unnecessary adjudication and in[End Page 12]
deciding issues in a concrete setting." Eagle-Picher
Indus., Inc. v. EPA, 759 F.2d 905
, 915 (D.C. Cir. 1985).
EDWARDS & ELLIOTT, FEDERAL STANDARDS OF REVIEW 119""
On the record before us, it is clear that Appellants' action
was not ripe for review by the District Court, nor is it ripe for
review by this court. The agency did not take final action on
Appellants' permit applications until the FWS Director
decided Appellants' administrative appeal, and this did not
occur until after the District Court issued its decision. As a
result, the District Court unknowingly decided the case
without the full administrative record before it. Because the
challenged action before the District Court was not fit for
review, the decision rendered by the District Court is, in turn,
not fit for review by this court. We have no basis to review
the agency's final action "" i.e., the FWS Director's decision
denying Appellants' administrative appeal because that
action has yet to be properly presented to the District Court.
We have no occasion to decide here whether a case might
arise in which an agency fails to object on grounds of finality,
and thus forfeits the objection, but the case is nonetheless ripe
for review. That case is not before us, so we offer no opinion
on this question.
Appellants do not contend that they will suffer any
"hardship" if this appeal is dismissed. Indeed, both parties
have simply suggested that this court should vacate the
District Court's decision to "clear the path for [Appellants] to
relitigate the issues in [a] new suit." Appellants' Opp'n to
Defs.'-Appellees' Mot. to Dismiss as Moot, 17 (July 2, 2012); see also Defs.'-Appellees' Reply to Mot. to Dismiss as Moot,
2, n.1 (July 9, 2012).[End Page 13]
For the reasons stated above, we hereby dismiss this
appeal as unripe, vacate the decision of the District Court, and
remand the case to the District Court for further consideration.