Motion for relief from Local Civil Rule 7(n)(1) — White Coat Waste v. HHS (D.D.C.)

Record facts

U.S. District Court for the District of Columbia · No. 1:22-cv-00006-CJN · Doc. 22 · 2022-09-20 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 
WHITE COAT WASTE PROJECT, INC., 
 
 
Plaintiff, 
 
              v. 
 
U.S. DEPARTMENT OF HEALTH AND 
HUMAN SERVICES, et al., 
 
 
 
                        Defendants. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
 
 
 
 
Civ. A. No. 22-0006 (CJN) 
DEFENDANTS’ MOTION FOR RELIEF FROM 
LOCAL CIVIL RULE 7(n)(1) AND MEMORANDUM OF 
POINTS AND AUTHORITIES IN SUPPORT THEREOF 
Defendants move to stay any requirement under Local Civil Rule 7(n)(1) to file a 
certified list of the contents of the administrative record (“AR Index”) simultaneously with the 
filing of Defendants’ Motion to Dismiss, which will be filed contemporaneously with this 
motion.  Defendants respectfully request that the Court stay the deadline to file the AR Index 
until sixty days after Defendants file an answer to Plaintiffs’ Amended Complaint, should an 
answer be necessary after the Court rules on the Defendant’s Motion.  Pursuant to Local Civil 
Rule 7(m), counsel for Defendants conferred with counsel for Plaintiff, who indicated that 
Plaintiff opposes the relief sought at this time but that it was willing to meet and confer on the 
matter after Defendants file the Motion to Dismiss.  
This Court’s Local Civil Rules require the filing of the AR Index simultaneously with 
any dispositive motion, including a motion under Federal Rule of Civil Procedure 
(“Rule”) 12(b).  The Local Rules state that: 
[i]n cases involving the judicial review of administrative agency actions, unless 
otherwise ordered by the Court, the agency must file a certified list of the contents 
of the administrative record with the Court within 30 days following service of 
Case 1:22-cv-00006-CJN   Document 22   Filed 09/20/22   Page 1 of 5

2 
the answer to the complaint or simultaneously with the filing of a dispositive 
motion, whichever occurs first. 
Local Civ. Rule 7(n)(1). 
This case involves claims under the Administrative Procedure Act (“APA”) that 
guidelines issued by the National Institutes of Health (NIH) are contrary to law and constitute 
legislative rules that were improperly promulgated without notice-and-comment.  See generally 
ECF No. 17 Amended Complaint (“Am. Compl.”).  Defendants are moving to dismiss because 
Plaintiff lacks standing and has failed to state a claim.  Among other things, Defendants 
challenge Plaintiff’s organizational and informational standing and Plaintiff’s ability to state a 
claim under the APA based on an informational injury given the facts in the Amended 
Complaint. 
The administrative record is unnecessary to resolve Defendants’ dispositive motion 
because the motion centers on purely legal issues.  Rather, the Court may decide the motion 
considering only the facts alleged in the Amended Complaint, documents either attached to or 
incorporated by reference in the Amended Complaint, and matters of which the Court may take 
judicial notice.  No extrinsic evidence is required to adjudicate Defendants’ motion, especially 
because Defendants’ challenge is primarily a facial and factual challenge to jurisdiction.    
The D.C. Circuit has long recognized that a court can resolve claims at the motion to 
dismiss stage without the administrative record where, as here, the record is not germane to the 
issues presented in the motion to dismiss. See Am. Bankers Ass’n v. Nat’l Credit Union Admin., 
271 F.3d 262, 266 (D.C. Cir. 2001) (affirming district court’s dismissal of Plaintiff’s claims and 
rejecting appellant’s argument that the district court erred in refusing to compel production of the 
administrative record before deciding motion to dismiss); Banner Health v. Sebelius, 797 F.Supp 
2d 97, 112 (D.D.C. 2011) (“When presented with a motion to dismiss for failure to state a claim, 
Case 1:22-cv-00006-CJN   Document 22   Filed 09/20/22   Page 2 of 5

3 
the district court may, in appropriate circumstances, reach the merits even in the absence of the 
administrative record, as when the parties’ arguments can be resolved with reference to nothing 
more than the relevant statute and its legislative history”).  Courts in this district routinely grant 
government requests to defer the filing of a certified list of the contents of the administrative 
record.  See, e.g., Connecticut v. U.S. Dep't of Interior, 344 F. Supp. 3d 279, 294 (D.D.C. 2018); 
Mdewakanton Sioux Indians of Minn. v. Zinke, 264 F. Supp. 3d 116, 123 n.12 (D.D.C. 2017); 
Carroll v. Office of Fed. Contract Compliance Programs, U.S. Dep’t of Labor, 235 F. Supp. 3d 
79, 81 n.1 (D.D.C. 2017); PETA v. U.S. Fish & Wildlife Serv., 59 F. Supp. 3d 91, 94 n.2 (D.D.C. 
2014); see also Minute Order, Friends of Animals v. Ashe, No. 13-cv-1580-BAH (D.D.C. Dec. 
23, 2013); Minute Order, Oregonians for Floodplain Prot. v. U.S. Dep’t of Commerce, No. 1:17-
cv-01179 (D.D.C. Sept. 4, 2017); Minute Order, Fitzgerald v. Fed. Transit Admin., No. 1:14-cv-
01471-RJL (D.D.C. Feb. 17, 2015); Minute Order, U.S. Ass’n of Reptile Keepers v. Jewell, No. 
1:13-cv-02007-EGS (D.D.C. Jan. 28, 2014). 
Granting Defendants’ request to defer the administrative record and index here pending 
resolution of their motion to dismiss will conserve agency resources in the event that the Court 
grants dismissal of the amended complaint. Should the Court deny Defendants’ motion to 
dismiss, counsel for Defendants will confer with counsel for Plaintiff within 14 days of the 
Court’s order and endeavor to submit a joint proposed schedule for further proceedings within 21 
days of the court’s order.  
 
 
Case 1:22-cv-00006-CJN   Document 22   Filed 09/20/22   Page 3 of 5

4 
In the event that the Court denies the Motion to Dismiss, Defendants request that they be 
ordered to file an AR Index, to the extent any Administrative Record exists, by no later than 
sixty days after the filing of Defendants’ answer, or at such other time as ordered by the Court. 
Dated: September 20, 2022   
 
 
 
Washington, DC  
 
 
Respectfully submitted, 
 
MATTHEW M. GRAVES 
D.C. Bar No. #481052 
United States Attorney 
 
BRIAN P. HUDAK 
Chief, Civil Division 
 
 
 
 
 
 
By: 
 /s/ Michael E. Yohannan 
 
MICHAEL E. YOHANNAN 
Pennsylvania Bar No. 307575 
Special Assistant United States Attorney 
601 D. Street, NW 
Washington, D.C. 20530 
Tel: (202) 815-8969 
Michael.Yohannan@usdoj.gov 
 
            Counsel for Defendants 
 
 
 
 
Case 1:22-cv-00006-CJN   Document 22   Filed 09/20/22   Page 4 of 5

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 
WHITE COAT WASTE PROJECT, INC, 
 
 
Plaintiff, 
 
 
v. 
 
U.S. DEPARTMENT OF HEALTH AND  
HUMAN SERVICES, et al. 
 
 
 
Defendants. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
 
 
 
 
Civ. A. No. 22-0006 (CJN) 
 [PROPOSED] ORDER 
 
UPON CONSIDERATION of Defendants’ Motion for Relief from Local Rule 7(n)(1), 
and the entire record herein, it is hereby 
ORDERED that Defendants’ Motion for Relief is GRANTED; and it is further 
ORDERED that the deadline for Defendants to file a certified list of the contents of the 
administrative record is stayed until 60 days after Defendants file an answer to Plaintiffs’ 
Amended Complaint, should an answer be necessary after the Court rules on Defendants’ Motion 
to Dismiss. 
SO ORDERED this 
day of  
, 2022. 
 
 
 
 
 
United States District Judge 
 
Case 1:22-cv-00006-CJN   Document 22   Filed 09/20/22   Page 5 of 5

File and source

File

gov.uscourts.dcd.238842.22.0.pdf

Size

153,885 bytes

SHA-256

7cb9e093c7544c94d225b2e0f003ca0c2b65e327029e64d550c289f067c997df

Our copy

gov.uscourts.dcd.238842.22.0.pdf

Original

archive.org