Petition for Writ of Certiorari — Robert H. Aland, Petitioner v. Department of the Interior, et al.

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Supreme Court, U.S.

FILED

SEP 2 3 2024

NO. 24-

OFFICE OF THE CLERK

tfje

Supreme Court of tfje fimteb States;

ROBERT H. ALAND,

Petitioner,

U. S. DEPARTMENT OF THE INTERIOR;

DEB HAALAND, Secretary of the U.S. Department

OF the INTERIOR; U.S. FISH & WILDLIFE SERVICE; AND

MARTHA M. WILLIAMS, DIRECTOR OF THE

U.S. Fish & Wildlife Service,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Robert H. Aland

Petitioner Pro Se

140 Old Green Bay Road

Winnetka, IL 60093-1512

(847) 784-0994

rhaland@comcast.net

September 23, 2024

SUPREME COURT PRESS

(888) 958-5705

Boston, Massachusetts

QUESTIONS PRESENTED

These are questions of first impression. The

Supreme Court has never decided these fundamental

questions with regard to a Presidential appointment

that violates a federal statute. 1

Respondents have not filed an Answer, since

these questions arise out of Respondents’ motion to

dismiss in the District Court, which was granted and

affirmed on appeal by the Seventh Circuit. Thus, if

this Court grants this Petition and decides the juris

dictional questions in Petitioner’s favor, the case

should be returned to the District Court with instruc

tions to decide the federal question under 16 U.S.

§ 742b(b) and the appropriate relief under the Declara

tory Judgment Act (“DJA”), 28 U.S.C. §§ 2201, 2202.

The Questions Presented are:

1. Standing. Whether Petitioner has standing

within the meaning of Article III, Sec. 2, Clause 1 of the

U.S. Constitution to challenge a federal government

official (here Respondent Martha Williams (‘Williams”),

Director of the U.S. Fish & Wildlife Service (“FWS”),

an agency of the U.S. Department of the Interior

(“DOF’)), who was appointed by the President of the

United States, in violation of a statute of the United

States (here 16 U.S. § 742b(b)) that prescribes the

1 The Congressional Research Service prepared a Report in 2015

that identified 33 department and agency leadership positions

for which Congress created statutory qualification requirements,

including 16 U.S.C. § 742b(b) (page 23). Henry B. Hogue, U.S.

Congressional Research Service, Statutory Qualifications for

Executive Branch Positions (RL 33886; Sept. 9, 2015). Thereafter

at least one additional leadership position-Chief of the Internal

Revenue Service Independent Office of Appeals-was created by

Congress with statutory qualifications. 26 U.S.C. § 7803(e)(2)(C).

qualifications for that office (here “scientific educa

tion”).

2. Subject Matter Jurisdiction. Whether the

District Court has subject matter jurisdiction to hear

and decide Petitioner’s challenge (see above) under

28 U.S.C. § 1331, which vests federal district courts

with original jurisdiction over “all civil actions arising

under the . . . laws ... of the United States,” and the

authority under the DJA to provide the appropriate

relief.

Ill

PARTIES TO THE PROCEEDINGS

Robert H. Aland, a retired lawyer, appearing pro

se, is the only Petitioner and was the only Plaintiff

and Appellant below.

Respondent DOI is a federal executive department

responsible for the administration of lands, minerals

and other resources of the United States. Its

mission is to protect and manage the nation’s natural

resources and cultural heritage for the benefit of

the American people; provide scientific and scholarly

information about those resources and natural hazards;

and exercise the nation’s trust responsibilities and

special commitments to American Indians, Alaska

Natives and island territories. It has over 70,000

employees. It oversees about 420 million acres of fed

eral lands; about 55 million acres of tribal lands;

more than 700 million acres of subsurface minerals; and

about 2.5 billion acres of the outer continental shelf.

Respondent Haaland is Secretary of DOI and a

member of the President’s Cabinet. In that capacity she

has management and supervisory responsibility for

all functions of DOI and its agencies such as FWS,

including, among others, management of public lands,

national parks and national monuments and protec

tion of endangered and threatened species, including

wildlife, under the Endangered Species Act (“ESA”),

16 U.S.C. §§ 1531 - 1544. 16 U.S.C. § 742b(d).

Respondent FWS is an agency of DOI and is the

federal agency responsible for the conservation, pro

tection and restoration of fish, wildlife and natural

habitats on federal lands across the United States

and its insular territories. 16 U.S.C. § 742b(b), (c). Its

primary mission is “to work with others to conserve,

protect and enhance fish, wildlife and plants and

their habitats for the continuing benefit of the

American people.” It has about 9,000 employees. Its

responsibilities include, together with the National

Oceanic and Atmospheric Administration, an agency

of the U.S. Department of Commerce, administering

and enforcing the ESA, including listing and delisting

species under the ESA.

Respondent Williams is the Director of FWS and

in that position is “the chief executive of [FWS],

establishes [FWS] policy, issues directives, and is

responsible for all [FWS] does or fails to do”; “the

Director establishes [FWS] policies and sets priorities

with the support of the Assistant and Regional Direc

tors.’^

The FWS Director is the most important official

in the federal government for protection and preser

vation of species, including ESA enforcement. FWS

decisions are determinative in many cases with

regard to whether individual members of a species,

or entire species, survive or become extinct. Decisions

by FWS also can apply to species located outside the

United States such as whether trophy-hunted species

in foreign countries can be imported into the United

States. Williams has been and will continue to be re

quired to make or approve all of those decisions,

including, in some cases, by delegation of authority.

These Respondents were the only Defendants and

Appellees below.

2 U.S. Fish & Wildlife Service, 050 FW 1, Directorate Roles and

Relationships, 1 1.2.A (March 27, 1996).

LIST OF PROCEEDINGS

U.S. Court of Appeals for the Seventh Circuit

No. 23-2415

Aland v. U.S. Department of the Interior et al.

Judgment: May 8, 2024 (affirming District Court)

Rehearing Denial: June 25, 2024

U.S. District Court, N.D. of Illinois, Eastern Div.

No. l:22-cv-05821

Aland v. U.S. Department of the Interior et al.

Judgment: December 30, 2022

(dismissing case for lack of subject matter

jurisdiction under 28 U.S.C. § 1331)

Reconsideration Denial: March 1, 2023

Denial of Interlocutory Appeal Under 28 U.S.C. §

1292(b): April 26, 2023

Second Reconsideration denial: June 12, 2023

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.... ,,.............................

PARTIES TO THE PROCEEDINGS..................... m

LIST OF PROCEEDINGS.......................................

TABLE OF AUTHORITIES.................................... Vlll

OPINIONS BELOW.................................................

JURISDICTION........................................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED...............................

STATEMENT OF THE CASE.................................

A. Respondent Williams’ Failure to Meet

Statutory Qualification............ ....................

B. Petitioner’s Environmental Activities.........

C. Jurisdiction of District Court....................... 14

REASONS FOR GRANTING THE PETITION...... 15

Petitioner Has Standing....................

II. District Court Has Subject Matter

Jurisdiction........................... ..............

A. Federal Question.............................

B. Declaratory Judgment Act.............

CONCLUSION..................................................

Vll

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Order, U.S. Court of Appeals for the Seventh

Circuit (May 8, 2024)........................................ la

Memorandum Opinion and Order, U.S. District

Court for the Northern District of Illinois

Eastern Division (December 30, 2022)............ 7a

Order Denying Interlocutory Appeal, U.S. District

Court for the Northern District of Illinois

Eastern Division (April 26, 2023).................... 18a

Rehearing and Reconsideration Orders

Order Denying Petition for Rehearing En Banc,

U.S. Court of Appeals for the Seventh Circuit

(June 25, 2024).................................................. 23a

Order Denying Second Motion for Reconsidera-tion,

U.S. District Court for the Northern District

of Illinois Eastern Division

(June 12, 2023).................................................. 25a

Order Denying Motion for Reconsideration, U.S.

District Court for the Northern District of

Illinois Eastern Division (March 1, 2023)...... 30a

Other Documents

FRAP 28(j) Citation of Supplemental Authority

(November 15, 2023)........................................ 34a

FRAP 28(j) Citation of Supplemental Authority #3

(March 18, 2024)................................................ 37a

FRAP 28(j) Citation of Supplemental Authority #4

(June 28, 2024).................................................. 40a

Vlll

TABLE OF AUTHORITIES

Page

CASES

Aetna Casualty & Surety Co. v. Quarles,

92 F.2d 321 (4th Cir. 1937)......................

American Bottom Conservancy v. U.S. Army

Corps of Engineers, 650 F.3d 652

(7th Cir. 2011)

16, 17, 18, 19

American Well Works Co. v. Layne & Bowler

Co., 241 U.S. 257 (1916)....................

Axon Enterprise, Inc. v. FTC,

598 U.S. 175 (2023)............................

21, 22, 23

BCBSM, Inc. v. Walgreen Co.,

642 F.Supp.3d 732 (N. D. Ill. 2022).

Behring Regional Center LLC v. Wolf,

544 F.Supp.3d 937 (N.D. Cal. 2021)

Bensman v. U.S. Forest Service,

408 F.3d 945 (7th Cir. 2005)........... 16, 17, 18, 19

Brown v. Kemp,

86 F.4th 745 (7th Cir. 2023)..............

Carlson v. United States,

837 F.3d 753 (7th Cir. 2016)............

Center for Biological Diversity v. U.S.

Department of the Interior, No. 9:22-cv00134 (D. Montana, filed 2022)..............

Crow Indian Tribe v. United States,

343 F.Supp.3d 999 (D. Mont. 2018),

aff’d, 965 F.3d 662 (9th Cir. 2020).........

10, 12

TABLE OF AUTHORITIES - Continued

Page

Defenders of Wildlife v. U.S. Fish & Wildlife

Service, 584 F.Supp.3d 812

(N. D. Cal. 2022)..........................................

10, 13

E. Central III. Pipe Trades Health & Welfare

Fund v. Prather Plumbing & Heating,

Inc., 3 F.4th 954 (7th Cir. 2021)........ 24, 25, 26

FDA v. Alliance for Hippocratic Medicine,

602 U.S. 367 (June 13, 2024).............

1, 20

Franchise Board of State of California

v. Construction Laborers Vacation Trust

for S. California, 463 U.S. 1 (1983)...........

Garanti Finansal Kiralama v. Aqua Marine &

Trading, Inc., 697 F.3d 59 (2d Cir. 2012)..

Greater Yellowstone Coalition, Inc.

v. Servheen, 672 F.Supp.2d 1105

(D. Mont. 2009), aff’d, 665 F.3d 1015

(9th Cir. 2011)........

9, 10, 12

Gunn v. Minton,

568 U.S. 251 (2013)

Indiana Right to Life Victory Fund v. Morales,

112 F.4th 466 (7th Cir. 2024)......................

Jackson v. Payday Financial, LLC,

764 F.3d 765 (7th Cir. 2014)........................

L.M.-M. v. Cuccinelli,

442 F.Supp.3d 1 (D. D. C. 2020).................

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992).......................................

Maryland Casualty Co. v. Pacific Coal & Oil

Co., 312 U.S. 270 (1941)............................... 28, 29

TABLE OF AUTHORITIES - Continued

Page

Massachusetts v. EPA,

549 U.S. 497 (2007).....................................

McCleskey v. CWG Plastering, LLC,

897 F.3d 899 (7th Cir. 2018).....................

Medlmmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007).....................................

28, 29

Mims v. Arrow Financial Services, LLC,

565 U.S. 368 (2012).....................................

Murthy v. Missouri,

144 S.Ct. 1972 (June 26, 2024)................ 1, 15, 20

National Farmers Union Ins. Cos. v. Crow

Tribe of Indians, 471 U.S. 845 (1985)......

Navy Federal Credit Union v. LTD Financial

Services, LP, 972 F.3d 344 (4th Cir. 2020).

Parents Protecting Our Children, Ltd. v. Eau

Claire Area School District, 95 F.4th 501

(7th Cir. 2024)..................................................

Peacock v. Thomas,

516 U.S. 349 (1996)........................................

Phoenix Ins. Co., Ltd. v. ATI Physical Therapy,

690 F.Supp.3d 862 (N. D. Ill. 2023)............ 21, 22

Sackett v. EPA,

598 U.S. 651 (2023).........................................

Sapp v. Foxx,

2023 WL 4105942 (N. D. Ill. 2023).............

Sarauer v. Int’lAssn of Machinists &

Aerospace Workers Dist. No. 10,

966 F.3d 661 (7th Cir. 2020).........................

TABLE OF AUTHORITIES - Continued

Page

Sarelas v. Sheehan,

326 F.2d 490 (7th Cir. 1963)..................

Save the Yellowstone Grizzly v. U.S. Fish &

Wildlife Service, No. 4:23-cv-00363

(D. Idaho)....................................................

Sears, Roebuck & Co. v. American Mut’l

Liability Ins. Co., 372 F.2d 435

(7th Cir. 1967).............................................

Skelly Oil Co. v. Philips Petroleum Co.,

339 U.S. 667 (1950)...................................

Tennessee Valley Authority v. Hill,

437 U.S. 153 (1978)...................................

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021)...................................

16, 19

Union Pacific Railroad Co. v. Regional

Transp. Authority, 74 F.4th 884

(7th Cir. 2023)............................................

29, 30

Wyoming v. Haaland et al.,

Case No. 2:23-cv-00092-ABJ

(D. Wyoming 2023)....................................

CONSTITUTIONAL PROVISIONS

U.S. Const, art. Ill, § 2, cl.l.................... i, 2, 15, 17, 28

STATUTES

5 U.S.C. § 553

5 U.S.C. § 702

TABLE OF AUTHORITIES - Continued

Page

16 U.S.C. § 742b(b)........ i, 2, 4-6, 13, 18, 23-28, 30-32

16U.S.C. § 742b(c).........

16 U.S.C. § 742b(d)........

•••

16 U.S.C. § 1540(g)(1)(A)

9, 10

16 U.S.C. §§ 1531-1544

Endangered Species Act

iii, 6, 8-13, 30

26 U.S.C. § 7803(e)(2)(C)....

28 U.S.C. § 1254(1).....

28 U.S.C. § 1292(b).....

28 U.S.C. § 1331..........

ii, 3, 14, 20, 21, 23-26, 30

28 U.S.C. § 1332..........

28 U.S.C. § 1332(c)(1)...

28 U.S.C. §§ 2201, 2202

Declaratory Judgment Act

33 U.S.C. § 1251 et seq.,

Clean Water Act....

i, ii, 3, 22-24,

......26-30, 32

JUDICIAL RULES

Fed. R. App. P. 28(j).

1,19

Fed. R. Civ. P. 57 .....

Sup. Ct. R. 13.1.......

Sup. Ct. R. 13.3.......

Xlll

TABLE OF AUTHORITIES - Continued

Page

REGULATIONS

50 C.F.R. § 424.11

FEDERAL REGISTER

70 Fed. Reg. 69854 (Nov. 17, 2005)...

81 Fed. Reg. 13174 (March 11, 2016)

83 Fed. Reg. 35193 (July 25, 2018)...

84 Fed. Reg. 17768 (April 6, 2019)....

89 Fed. Reg. 20489 (March 22, 2024)

89 Fed. Reg. 51864 (June 20, 2024)..

89 Fed. Reg. 55059 (July 3, 2024)....

89 Fed. Reg. 56253 (July 9, 2024)....

CONGRESSIONAL RECORD

168 Cong. Rec. D187 (Feb. 17, 2022)

OTHER AUTHORITIES

Cong. Research Service,

Grizzly Bears and the Endangered Species

Act (R48116; June 28, 2024)....... ...............

Henry B. Hogue,

U.S. Congressional Research Service,

Statutory Qualifications for Executive

Branch Positions (RL 33886; Sept. 9,

2015).............................................................

XIV

TABLE OF AUTHORITIES - Continued

Page

Martha M. Williams,

Lessons From the Wolf Wars: Recovery v.

Delisting Under the Endangered Species

Act, 27 Fordham Env’l Law Rev. 142

(2015)............................................................

States of Idaho, Montana and Wyoming,

Memorandum of Agreement Regarding the

Management and Allocation of

Discretionary Mortality of Grizzly Bears

in the Greater Yellowstone Ecosystem

(2016; amended 2024)................................. 12, 17

WWi

OPINIONS BELOW

The December 30, 2022, opinion of the District

Court is reported at 2024 WL 18027569 and is attached

as App.7a. The March 1, April 26 and June 12, 2023,

opinions of the District Court are not officially reported

but are attached at App.30a, 18a, and 25a, respectively.

The May 8, 2024, opinion of the Seventh Circuit

is reported at 2022 WL 2036115 and is attached at

App.la. The June 25, 2024, opinion of the Seventh

Circuit is not officially reported but is attached at

App.23a.

JURISDICTION

The Judgment of the Seventh Circuit was issued

on May 8, 2024. App.la. Petitioner filed a motion for

rehearing en banc on June 4, 2024. ECF 24. The

motion was denied on June 25, 2024. App.23a. The

deadline for filing this Petition under Sup. Ct. Rules

13.1 and 13.3 is September 23, 2024 (i.e., 90 days

from June 25, 2024).

On June 28, 2024, Petitioner filed a letter under

Fed. R. App. P. (“FRAP”) 28(j) calling the Seventh

Circuit’s attention to two new Supreme Court decisions

dealing exclusively with standing, FDA v. Alliance

for Hippocratic Medicine, 602 U.S. 367 (June 13,

2024), and Murthy v. Missouri, 144 S.Ct. 1972 (June

26, 2024), and asking that court to assess the impact

of those two cases. ECF 26; attached at App.40a.

However, the Seventh Circuit refused and issued an

Order on July 3, 2024, stating that it- would “take no

action with regard to [Petitioner’s] filing.” ECF 27.

The basis for this Court’s jurisdiction is 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S. Const. Art. Ill, Section 2, Clause 1 - Subjects

of Jurisdiction

The judicial Power shall extend to all Cases, in

Law and Equity, arising under . . . the Laws of

the United States, and ... to Controversies to

which the United States shall be a Party. . . .

16 U.S.C § 742b-United States Fish and Wildlife

Service

(b) Establishment; Director of United States Fish

and Wildlife Service; appointment qualifications

There is established within the Department of

the Interior the United States Fish and Wildlife

Service. The functions of the United States Fish

and Wildlife Service shall be administered under

the supervision of the Director, who shall be

subject to the supervision of the Assistant

Secretary for Fish and Wildlife. The Director of

the United States Fish and Wildlife Service

shall be appointed by the President, by and with

the advice and consent of the Senate. No individual

may be appointed as the Director unless he is,

by reason of scientific education and experience,

knowledgeable in the principles of fisheries and

wildlife management.

28 U.S.C. § 1331-Federal Question

The district courts shall have original jurisdiction

of all civil actions arising under the Constitution,

laws, or treaties of the United States.

Declaratory Judgment Act

28 U.S.C. § 2201-Creation of remedy

(a) In a case of actual controversy within its

jurisdiction, .... any court of the United

States, upon the filing of an appropriate

pleading, may declare the rights and other

legal relations of any interested party seeking

such declaration, whether or not further

relief is or could be sought. Any such decla

ration shall have the force and effect of a

final judgment or decree and shall be

reviewable as such.

28 U.S.C. § 2202-Further relief

Further necessary or proper relief based on a

declaratory judgment or decree may be granted,

after reasonable notice and hearing, against any

adverse party whose rights have been determined

by such judgment.

STATEMENT OF THE CASE3

Respondent Williams’ Failure to Meet

Statutory Qualification

Respondent Williams is a Montana-admitted law

yer on inactive bar status. She has never had, and does

not now have, “scientific education and experience”

within the meaning of 16 U.S.C. § 742b(b).4 She

received a Bachelor of Arts (B.A.) degree from the

University of Virginia in 1989 and a Juris Doctor (J.

D.) degree from the University of Montana School of

Law in 1994.

Respondent Williams served as Legal Counsel

for Montana Fish, Wildlife and Parks (“MFWP”;

1998-2011); Deputy Solicitor, Parks and Wildlife, for

FWS (2011-2013); and Assistant Professor, University

3 Because Respondents have not filed an Answer, their chal

lenges to standing and subject matter jurisdiction are facial.

Thus, the well-pleaded facts set forth in the Complaint, which

are the basis for the facts below, are assumed to be true. E.g.,

Jackson v. Payday Financial, LLC, 764 F.3d 765, 773 n. 19 (7th

Cir. 2014).

4 Respondents argued in the District Court that “and” in 16

U.S.C. § 742b(b) means “or” so that Williams satisfies the

statute based upon “experience” if not “scientific education.”

ECF 22-1, pp. 13-15 n. 9. This argument was rejected by the

District Court in the context of a comparable subject matter

jurisdiction statute, 28 U.S.C. § 1332(c)(1). Navy Federal Credit

Union v. LTD Financial Services, LP, 972 F.3d 344, 350 (4th

Cir. 2020) (“and” means “in addition to”); BCBSM, Inc. v. Walgreen

Co., 642 F.Supp.3d 732, 740-41 (N. D. Ill. 2022) (quoting from

Navy Federal).

of Montana School of Law (2013-2017). These positions

required legal, not scientific, education.

Respondent Williams served as Director of MFWP

(2017-2020) and Principal Deputy Director for FWS

(2021 until confirmed as FWS Director). These positions

also did not require scientific education by statute or

otherwise.

The FWS Director is appointed by the President

of the United States with the advice and consent of

the United States Senate. 16 U.S.C § 742b(b). President

Biden announced his intention to nominate Respondent

Williams to be FWS Director on October 22, 2021,

and formally nominated her for that position on Oct

ober 25, 2021.5

5 Apparently those involved in the nomination and confirm

ation process for Williams were aware of the “scientific educa

tion” requirement of 16 U.S.C. § 742b(b) as a result of the failed

appointment in 2017 by then-Secretary of the Interior Ryan

Zinke of Gregory Sheehan to be Acting Director of FWS. Daniel

Jorjani, then-Principal Deputy Solicitor of the DOI, stated in a

June 5, 2017, email to Lori Mashburn, then-DOI’s White House

Liaison, as follows:

I just read through to the last line [of Defendant

DOI’s June 5, 2017, press release] and saw that

[Sheehan is] also going to be Acting [FWS Director].

Sheehan just has a business degree: http://iwjv.org/

bio/greg-sheehan Did someone already confirm that

he can serve as Acting FWS Director w/o a degree in

the appropriate field? Generally, the FWS Director

should have a scientific degree in addition to realworld experience: http://www.law.cornell.edu/uscode/

text/16/742b

Respondents DOI and FWS determined that Sheehan was

disqualified from serving as Acting FWS Director due to his vio-

Due to a procedural requirement, on January

17, 2022, President Biden re-nominated Williams to

be FWS Director.

Williams’ confirmation hearing took place on

November 17, 2021, before the Senate Committee on

Environment and Public Works (“SEPW’). Only nine

(of 20) members of the SEPW attended the hearing.

The “scientific education” requirement of 16 U.S.C.

§ 742b(b) was not mentioned by members of the

SEPW or Respondent Williams during the hearing.

On January 12, 2022, the SEPW voted to confirm

Respondent Williams as FWS Director and advanced

the confirmation process to the full Senate. She was

confirmed as FWS Director by the full Senate on Feb

ruary 17, 2022, by voice vote. 168 Cong. Record D187

(Feb. 17, 2022). No Senator was required to vote for

the record.

Williams has occupied the office of FWS Director

continuously since her Senate confirmation to the

present date and has fully participated, directly or

indirectly, in all of FWS’s decision-making processes

since assuming office.

Petitioner’s Environmental Activities

Petitioner has had a longstanding and passionate

interest in the proper administration and enforcement

of the ESA in accordance with the congressional pur

pose for its enactment. The Supreme Court in a

landmark 1978 case stated that the ESA is “the most

comprehensive legislation for the preservation of

endangered species ever enacted by any nation.”

lation of 16 U.S.C. § 742b(b); his employment by Respondent

FWS was terminated in 2018.

Tennessee Valley Authority v. Hill, 437 U.S. 153, 180

(1978).

Petitioner has spent substantial time in the

Greater Yellowstone Ecosystem (“GYE”) for more

than 45 years. The GYE is a vast, mountainous and

relatively unpopulated area consisting of almost 20

million acres in northeast Idaho, southwest Montana

and northwest Wyoming that includes some of

America’s most cherished wild lands. In the period

from 1998, when Petitioner completed construction of

his home in Wilson, Wyoming, to the present date, he

has visited the GYE 5—7 times annually for at least

one week each visit.

During his visits to the GYE, Petitioner has

regularly and frequently hiked and engaged in other

outdoor activities within Grand Teton and Yellowstone

National Parks and surrounding national forests.

These activities have included wildlife viewing, wildlife

and scenic photography, boating, cross-skiing, snowshoeing and aesthetic enjoyment in areas inhabited

by grizzly bears, a protected species in the Lower 48

States under the ESA; gray wolves, a protected species

in most of the Lower 48 States under the ESA; and

other species. Petitioner intends to continue these

activities indefinitely.

Petitioner has participated (a) financially in

successful group efforts to retire allotments for grazing

domestic livestock held by private individuals on

public lands under the jurisdiction of the DOI in the

GYE to prevent wildlife conflicts with domestic grazing

operations and (b) physically in group efforts to remove

barbed wire fences on retired allotments so that

wildlife can have unrestricted access to those public

lands free of conflicts and traverse those public lands

free of danger from the fences particularly when

hidden by deep snow.

Petitioner submitted detailed written comments

to Respondents in opposition to its (a) 2005 proposed

rule to remove ESA protection for GYE grizzly bears

(70 Fed. Reg. 69854 (Nov. 17, 2005)) on February 20,

2006, and written supplements to those comments on

March 4, June 12, October 4 and November 7, 2006,

and February 12, 2007; (b) 2016 proposed rule to

remove ESA protection for GYE grizzly bears (81

Fed. Reg. 13174 (March 11, 2016)) on May 9, 2016,

and written supplements to those comments on May

14 and 17 and October 6, 2016; (c) notice inviting the

public to submit comments with regard to the periodic

review of implementation of the Convention on

International Trade in Endangered Species of Wild

Fauna and Flora (89 Fed. Reg. 20489 (March 22,

2024)); (d) notification that three species are not

warranted for ESA protection (89 Fed. Reg. 51864

(June 20, 2024)); (e) final rule amending regulations

for sport hunting and trapping in national preserves

in Alaska (89 Fed. Reg. 55059 (July 3, 2024)); and (f)

proposed rule to designate critical habitat under the

ESA for the Barrens topminnow (89 Fed. Reg. 56253

(July 9, 2024)).

Petitioner also submitted detailed written

comments to Respondents and the U.S. Department

of Agriculture (“USDA”) in support of protection and

preservation of wildlife and critical habitat, including

(a) the 2018 proposed amendment to 50 C.F.R. § 424.11

eliminating language from the regulations that

precluded Respondents from taking economic and

other impacts into account in listing, delisting and

reclassifying decisions under the ESA (83 Fed. Reg.

35193 (July 25, 2018)), and a written supplement to

those comments on October 5, 2018; (b) the 2015

Yellowstone Bison Management Plan and Environ

mental Impact Statement promulgated by the National

Park Service, an agency of Respondent DOI, on June

15, 2015, and the State of Montana; (c) the USDA’s

2016 Environmental Assessment: Predator Damage

and Conflict Management in Wyoming promulgated

by Animal and Plant Health Inspection Services

(Ref: APHIS-2016-0084-0001) on December 15, 2016;

(d) environmental organizations’ April 19, 2017, Petition

to List Giraffes under the ESA on May 8, 2019 (84

Fed. Reg. 17768 (April 6, 2019)); (e) the USDA’s

November 2020 East Paradise Range Allotment

Management Plan, Environmental Assessment,

requesting the termination of grazing allotments in

Montana to protect public lands and wildlife and

supplements to those comments on December 2, 3

and 28, 2020, and 2021 Decision Notice with regard

to those allotments; and (f) the USDA’s November

2021 Elk Ridge Complex Rangeland Supplementation

Project Environmental Assessment on December 25,

2021.

Petitioner was plaintiff pro se and pro bono in a

civil suit under 16 U.S.C. § 1540(g)(1)(A) to invalidate

Respondent’s 2007 first final rule removing ESA pro

tection for GYE grizzly bears. Aland v. Salazar, U.S.

District Court, Northern District of Illinois, Eastern

Division, Case No. l:07-cv-04358 (filed 2007; transferred

to the Idaho District Court in 2008 and assigned

Case No. l:08-cv-00024). Petitioner was amicus curiae

in the civil suit that invalidated that final rule.

Greater Yellowstone Coalition, Inc. v. Servheen, 672

F.Supp.2d 1105 (D. Mont. 2009), affd, 665 F.3d 1015

(9th Cir. 2011).

Petitioner was a plaintiff pro se and pro bono in

a consolidated civil suit under 16 U.S.C. § 1540(g)(1)(A)

that invalidated Respondents’ second final rule

removing ESA protection for GYE grizzly bears. Crow

Indian Tribe v. United States, 343 F.Supp.3d 999 (D.

Mont. 2018), affd, 965 F.3d 662 (9th Cir. 2020).

Petitioner is a plaintiff pro se and pro bono in a

civil suit under 16 U.S.C. § 1540(g)(1)(A) to invalidate

Respondents’ 2020 final rule removing ESA protection

for gray wolves in the United States (except gray

wolves in the Northern Rocky Mountain (“NRM’)

states dues to the inclusion by Congress in a 2011

federal appropriations bill of a rider that statutorily

removed ESA protection for gray wolves in those

states.).6 Aland v. U.S. Dept, of Interior, Case No.

4:22-cv-01321 (N. D. Cal.). 7 That final rule was

invalidated in related cases, Defenders of Wildlife v.

U.S. Fish & Wildlife Service, 584 F.Supp.3d 812 (N.

D. Cal. 2022), which are on appeal to the U.S. Court

6 Respondent Williams attributed the rider to a response by

Congress “to mounting pressure from Montana and Idaho” and

characterized the rider as a “reward” to those states. Martha M.

Williams, Lessons From the Wolf Wars: Recovery v. Delisting

Under the Endangered Species Act, 27 FORDHAM Env’L Law

Rev. 106, 139, 142 (2015).

7 Petitioner’s suit, initially filed in the District Court for the

Northern District of Illinois in 2020, was transferred in 2022 to

the District Court for the Northern District of California, where

related civil suits were pending, and assigned Case No. 4:22-cv01321.

of Appeals for the Ninth Circuit.8 Cases Nos. 22-15529

et al. Petitioner’s case was stayed by the California

District Court pending resolution of the appeal by

the Ninth Circuit.

Petitioner has devoted thousands of hours and

expended significant funds over more than 20 years

to the prosecution of these civil suits.

Petitioner intends to continue indefinitely his

activities, including pro se and pro bono litigation, to

protect and preserve species, including wildlife, and

habitat against unlawful actions and inactions by

Respondents and other federal agencies. Thus, Peti

tioner has an immediate, real, direct and continuing

interest in and need for the proper administration

and enforcement of the ESA in accordance with the

congressional purpose for its enactment.

Petitioner’s enjoyment of areas in which grizzly

bears, gray wolves and other species occur has been

and will continue to be immeasurably enhanced by

the presence of these species, which are icons of

American history and culture, enhance the wildness

and natural state of these areas and are essential to

the health of the overall ecosystems in which they

occur. Thus, Petitioner has an immediate, real, direct,

continuing and personal interest in and need for the

protection and preservation of these species by Res

pondents.

Petitioner, as a result of Respondent Williams’

illegal occupation of the office of FWS Director, has

suffered, and will continue to suffer on an ongoing

8 Respondents filed their opening brief on September 13, 2024.

ECF 32.

basis in the future, injury in fact, which is concrete

and particularized and actual and imminent rather

than conjectural or hypothetical due to the legal contamination of all decisions by Respondents in which

she participates, directly or indirectly, that will result

in determinations of invalidity by courts in lawsuits

challenging those decisions.9

9 Petitions have been filed with FWS, for example, by Idaho

(March 2022), Montana (December 2021) and Wyoming (Janu

ary 2022) to remove ESA protections for grizzly bears in the

GYE and Northern Continental Divide Ecosystem, which

together contain close to 100% of the grizzly bears in the Lower

48 states. Respondents FWS and Williams will be required to

grant or deny the petitions. Wyoming sued Respondents in 2023

in the Wyoming Federal District Court for missing a deadline

for delisting grizzly bears. Wyoming v. Haaland et al., Case No.

2:23-cv-00092-ABJ. Petitioner has filed a motion for leave to file

an amicus curiae brief in that case. The motion is pending.

If ESA protection is terminated for grizzly bears by the FWS for

a third time, litigation again will follow. See Crow Indian Tribe,

supra; Greater Yellowstone, supra. If the delisting rule is upheld

in litigation, trophy hunting of grizzly bears will resume in

accordance with the Memorandum of Agreement Regarding the

Management and Allocation of Discretionary Mortality of Grizzly

Bears in the Greater Yellowstone Ecosystem (“MOA”) signed by

Idaho, Montana and Wyoming in 2016. ‘Discretionary Mortality”

in the title means trophy hunting; the MOA divides trophy

hunting deaths among the three states on a proportionate basis.

Implementation of the MOA has been prevented by the litiga

tions described herein. Respondents FWS and Williams will be

required to decide whether FWS will defend the third delisting

rule when litigation materializes.

Pending in Congress are bills to overrule the results of the

grizzly bear litigations. Cong. Research Service, Grizzly Bears

and the Endangered Species Act (R48116; June 28, 2024). The

bills would (a) require FWS to re-issue the rule removing the

bears’ ESA protection that was invalidated in litigation; (b)

preclude comments by the public otherwise permitted by the

These and other actions and inactions by-.Res

pondents FWS and Williams are not speculative; they

present real and present dangers to the survival of

species such as grizzly bears and gray wolves,

especially taking into consideration Williams’ lack of

“scientific education” as required by Congress for the

Director in 16 U.S.C. § 742b(b).

The legally contaminated decisions by Respond

ents due to the involvement of Respondent Williams

could result in (a) the killing and maiming of grizzly

bears, gray wolves and other species that produces

ecological harm to the ecosystems where these

Administrative Procedure Act (“APA”), 5 U.S.C. § 553; and (c)

preclude judicial review. Respondents FWS and Williams will

be required to decide whether to support or oppose these bills.

Every indication is that they will support delisting. See f 14 of

February 22, 2024, Stipulation of Dismissal and Settlement

Agreement (ECF 26), Save the Yellowstone Grizzly v. U.S. Fish

& Wildlife Service, Case No. 4:23-cv-00363 (D. Idaho).

As another example, as discussed above, in February 2022 the

District Court for the Northern District of California struck

down a 2020 rule issued by Respondent FWS that removed ESA

protection for gray wolves in the United States Defenders of

Wildlife, supra. The cases are on appeal to the Ninth Circuit.

Cases Nos. 22-15529 et al. Respondents FWS and Williams will

be required to decide whether to continue to prosecute the

appeals.

Petitions were filed with Respondent FWS to restore ESA pro

tection for gray wolves throughout the United States, including

the NRM states. On August 9, 2022, a civil suit under the ESA

was filed for declaratory and injunctive relief to require Res

pondent FWS to grant the petitions. Center for Biological

Diversity v. U.S. Department of the Interior, Montana District

Court, Case No. 9:22-cv-00134. Respondents FWS and Williams

will be required to decide whether or not to continue to defend

the litigation or grant the petitions and render the litigation moot.

species now occur and will occur in the future; (b)

adverse impact on Petitioner’s recreational pursuits

such as hiking, boating, cross-country skiing, wildlife

viewing and photography and aesthetic enjoyment;

investments of time by Petitioner; and (d) loss to

Petitioner and others, in the words of the philanthro

pist and environmentalist, Laurance S. Rockefeller,

whose name adorns the Laurance S. Rockefeller Visitor

Center in Grand Teton National Park, Wyoming, of

the “spiritual renewal that comes along with the

wonder of the natural world.”

These injuries will be directly traceable to

Respondent Williams as a result of her illegal

occupation of the office of FWS Director and the

resulting legal contamination of her decisions; and it

is likely, and not merely speculative, that the injuries

will be redressed by a declaration by the District

Court resulting in the removal of Respondent Williams

from office.

Jurisdiction of District Court

The basis of jurisdiction of the District Court,

which is one of the major issues before this Court, as

discussed below, is 28 U.S.C. § 1331.

REASONS FOR GRANTING THE PETITION

Petitioner Has Standing

Justice Barrett recently described the standing

requirement in Murthy v. Missouri, 144 S.Ct. 1972,

1985-86 (June 26, 2024; citations omitted), as follows:

Article III of the Constitution limits the

jurisdiction of federal courts to “Cases” and

“Controversies.” The “case or controversy”

requirement is ‘“fundamental to the judiciary’s

proper role in our system of government.’”

Federal courts can only review statutes and

executive actions when necessary “to redress

or prevent actual or imminently threatened

injury to persons caused by . . . official viola

tion of law.” As this Court has explained, “[i]f

a dispute is not a proper case or contro

versy, the courts have no business deciding

it, or expounding the law in the course of

doing so.”

A proper case or controversy exists only

when at least one plaintiff “establish[es]

that [she] ha[s] standing to sue.” She must

show that she has suffered, or will suffer,

an injury that is “concrete, particularized,

and actual or imminent; fairly traceable to

the challenged action; and redressable by a

favorable ruling.” These requirements help

ensure that the plaintiff has “such a personal

stake in the outcome of the controversy as

to warrant Pier] invocation of federal-court

jurisdiction.”. . . .

See, e.g., TransUnion LLC v. Ramirez, 594 U.S. 413,

423-24 (2021); Massachusetts v. EPA, 549 U.S. 497,

517 (2007); Lujan v. Defenders of Wildlife, 504 tJ.S.

555, 560—61 (1992); American Bottom Conservancy v.

U.S. Army Corps of Engineers, 650 F.3d 652, 655-56

(7th Cir. 2011); Bensman v. U.S. Forest Service, 408

F.3d 945, 948-49 (7th Cir. 2005).

Petitioner has alleged in great detail in the

Complaint sufficient facts to meet each of the three

standing requirements, especially since Respondents

have not filed an Answer and the alleged facts must

be taken as true.10 In summary, since 1974, and

especially over the last two decades, Plaintiff has

demonstrated his absolute commitment to protection

and preservation and enjoyment of the environment,

particularly wildlife, by (a) visiting on a frequent,

regular and year-around basis the NRM area to engage

in hiking and other outdoor activities and wildlife

viewing and photographing (including grizzly bears,

gray wolves and many other species); (b) participating

physically and financially in group efforts to retire

grazing allotments on public lands and remove barbed

wire fences on those allotments to protect migrating

wildlife; (c) submitting numerous written comments

to Respondents with regard to proposed rules that

Petitioner believed would adversely affect wildlife

and public lands; and (d) litigating extensively on a

pro se and pro bono against Respondents to protect

grizzly bears and gray wolves against Respondents’

efforts to remove their protections under the ESA.

Moreover, Petitioner is strongly committed to

continuing these activities indefinitely into the future.

10 See footnote 3.

If Petitioner’s ability to continue to view and enjoy

wildlife and public lands is adversely affected, for

example by loss of a species such as grizzly bears, he

will suffer a concrete and particularized injury of the

most serious personal nature. If Respondents’ removal

of federal protection for grizzly bears had not been

invalidated by judicial intervention, the bears’

numbers, barely above the level required for species

survival, would have been substantially reduced by

trophy hunting under the MOA in the three states in

which almost all of the bears occur.

The Seventh Circuit has clearly recognized that

viewing and enjoying wildlife and public lands satisfy

the first standing requirement:

Consistent with the practical as well as

doctrinal thinking behind the requirement

of standing, a plaintiff, to establish Article

III standing to sue, must allege, and if the

allegation is contested must present evidence,

that the relief he seeks will, if granted avert

or mitigate or compensate him for an injurythough not necessarily a great injury-caused

by or likely to be caused by the defendant....

The magnitude, as distinct from the direct

ness, of the injury is not critical to the con

cerns that underlie the requirement of stand

ing; and so denying a person who derives

pleasure from watching wildlife or the

opportunity to watch it is a sufficient injury

to confer standing.

American Bottom Conservancy, supra at 656 (Emphasis

in original; citations Omitted). See Bensman, supra at

983.

Turning to the second standing requirement*,

there is no doubt that Petitioner’s injury is directly

traceable to Respondents, particularly Respondent

Williams, who, as the most important wildlife official

in the federal government, has been directly involved

in numerous species decisions since assuming office

and will continue to be involved in critical species

decisions in the future, including decisions with

regard to grizzly bears and gray wolves. All species

decisions by Respondents FWS and Williams will be

legally contaminated and subject to legal challenge

by aggrieved persons, including Petitioner.

Turning to the third standing requirement, a

grant of the relief requested by Petitioner under the

DJA — declaration that Respondent Williams holds

office in violation of 16 U.S.C. § 742b(b) and enforcing

her departure from office - will redress the actual

and imminent injury to Petitioner.

Petitioner’s record over the last two decades

consisting of the enjoyment of, and actions to protect

and preserve, wildlife and public lands leave no

doubt that (a) he will be injured by contaminated

decisions by Respondent Williams; (b) those injuries

will be traceable to Williams; and (c) the injuries will

be redressed by Williams’ departure from office.

Clearly Petitioner has standing in this case.

Respondents did not even mention, much less

attempt to distinguish, the two Seventh Circuit deci

sions relied upon by Petitioner with regard to standing,

American Bottom Conservancy, supra, and Bensman,

supra. This omission explains why Respondents down

graded their standing argument to “alternative” status.

Petitioner submitted two FRAP 28(j) letters to the

Seventh Circuit before it issued its decision on May

8, 2024^ The first, dated November 15, 2023 (App.34a),

called the Court’s attention to Brown v. Kemp, 86

F.4th 745 (7th Cir. 2023), which strongly supports

Petitioner’s position with regard to standing. The

second, dated March 18, 2024 (App.37a), called the

Court’s attention to Parents Protecting Our Children,

Ltd. v. Eau Claire Area School District, 95 F.4th 501

(7th Cir. 2024), also strongly supports Petitioner’s

standing position by negative implication.

The Seventh Circuit, in a superficial May 8, 2024,

decision, based only upon a “glance” at Petitioner’s

Complaint, rejected Petitioner’s standing position in

one sentence: [Petitioner] did not demonstrate a

concrete and particularized injury that makes him

individually suited to bring this sort of claim.” App.4a.

The Seventh Circuit did not bother to address, or

even cite, American Bottom Conservancy, Bensman,

Brown and Parents. Instead the Seventh Circuit only

cited this Court’s decision in TransUnion, a class

action involving facts and circumstances not even

close to the facts and circumstances of this case, in

which this Court, by a 5-4 vote, with two dissenting

opinions, held that there was no standing based on

the particular facts and circumstances. TransUnion,

perhaps of general interest with regard to standing,

is irrelevant with regard to the unique facts and cir

cumstances of this case.

Petitioner filed a petition for reconsideration en

banc by the Seventh Circuit on June 4, 2024, which

was summarily denied on June 25, 2024. However,

on June 28, 2024, Petitioner submitted another FRAP

28(j) letter (App.40a) calling the Seventh Circuit’s

attention to two recent decisions of this Court dealing*

exclusively with standing, Alliance for Hippocratic

Medicine, supra, and Murthy, supra, and requesting

the Seventh Circuit to assess the impact of those

decisions on this case. The letter briefly explained

why those cases supported Petitioner’s position by

negative implication. However, on July 3, 2004, the

Seventh Circuit refused to consider Alliance and

Murthy, stating: “The court will take no action on the

[Petitioner’s] filing.” ECF 27. Thus, the Seventh

Circuit has barely, if at all, considered standing in

this case.

Petitioner, a committed environmentalist with a

proven track record of actions over more than 20

years, has clearly established, based upon detailed

and well-pleaded facts, including substantial financial

expenditures, which will continue, that he has suffered,

and will continue to suffer, concrete past, present

and future injuries that are directly traceable to Res

pondents and can be remedied by a favorable deci

sion in this case. What more could Petitioner have

done over these years to earn legal standing to

pursue this lawsuit to protect wildlife?

II. District Court Has Subject Matter Juris

diction

A. Federal Question

The subject matter jurisdiction statute, 28 U.S.C.

§ 1331, is only one sentence in length and contains

only 22 words: “The district courts shall have original

jurisdiction of all civil actions arising under the Con

stitution, laws, or treaties of the United States.”

(Emphasis added.) It is clear, unequivocal and

straightforward. It is intended to provide an obstacle-

free pathway to subject matter jurisdiction in a fed

eral district court. As Justice Gorsuch stated in his

concurring opinion in Axon with regard to 28 U.S.C.

§ 1331 (598 U.S. at 205; emphasis in original):

Not may have jurisdiction, but shall. Not

some civil actions arising under federal law,

but all. The statute is as clear as statutes

get. . . .

This Court in Axon Enterprise, Inc. v. FTC, 598

U.S. 175 (2023), reminded us that 28 U.S.C. § 1331 is

not to be blocked by artificial obstacles on a case-bycase basis of the type erected by the District Court

and Seventh Circuit in this case.11 As Justice Gorsuch

stated (598 U.S. at 212; citations omitted):

11 Although there are hundreds, if not thousands, of cases

under 28 U.S.C. § 1331, that number is nowhere near as large

as might be expected taking into consideration the fact that all

cases in the federal court system must have jurisdictional bases

and in the overwhelming majority of those cases that basis is 28

U.S.C. § 1331 or § 1332 (diversity). No doubt the reason is that

the overwhelming majority of federal district courts correctly

apply 28 U.S.C. § 1331 for its intended purpose: To make sure

only real federal legal issues are adjudicated in the federal

court system. E.g., Carlson v. United States, 837 F.3d 753, 761

(7th Cir. 2016). A large percentage of cases under 28 U.S.C.

§ 1331 involve the issue of whether the underlying legal issues

are state or federal. E.g., Gunn v. Minton, 568 U.S. 251 (2013);

National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471

U.S. 845, 850-56 (1985); Franchise Board of State of California

v. Construction Laborers Vacation Trust for S. California, 463

U.S. 1, 7-22 (1983); American Well Works Co. v. Layne & Bowler

Co., 241 U.S. 257 (1916); Sarauer v. Inti Assn of Machinists &

Aerospace Workers Dist. No. 10, 966 F.3d 661, 668-75 (7th Cir.

2020); Sarelas v. Sheehan, 326 F.2d 490 (7th Cir. 1963);.

Frequently district courts do no more than refer to 28 U.S.C.

§ 1331 in footnotes. E.g., Phoenix Ins. Co., Ltd. v. ATI Physical

Jurisdictional rules, this Court has often

said, should be “clear and easy to apply.” For

parties, “[c]omplex jurisdictional tests compli

cate a case, eating up time and money as

[they] litigate, not the merits of their claims,

but which court is the right court to decide

those claims. For courts, jurisdictional rules

“mark the bounds” of their “‘adjudicatory

authority.’” Judges therefore “benefit from

straightforward rules under which they can

readily assure themselves of their power to

hear a case,” while “adventitious” rules leave

them with “almost impossible” tasks to per

form that squander their limited resources.

The plaintiffs. in Axon filed lawsuits in federal

district courts under the DJA to challenge the consti

tutionality of federal statutes that displaced district

court review of challenges to actions by two federal

agencies, the SEC and FTC, and authorized the

agencies’ administrative law judges to consider and

decide those challenges subject to review by circuit

courts of appeal.

The defendant agencies argued that the statutes

validly replaced district courts with internal admin

istrative law judges. The plaintiffs argued that the

administrative law judges were not accountable to

the President and, therefore, that the statutes violated

separation of powers principles and were unconsti

tutional. Justice Kagan, writing for the majority,

described the challenges as “fundamental, if not

existential.” Id. at 897. This Court unanimously

Therapy, 690 F.Supp.3d 862 n. 2 (N. D. Ill. 2023); Sapp v. Fox:e,

2023 WL 4105942 n. 2 (N. D. Ill. 2023).

rejected the agencies’ position and held that the

statutes could not displace district court review under

28 U.S.C. § 1331 and the DJA.12

The District Court and Seventh Circuit lost

sight of this Court’s admonitions in Axon and Mims.

Instead of accepting subject matter jurisdiction and

moving on to the issue under 16 U.S.C. § 742b(b), the

two courts searched for an obstacle to subject matter

jurisdiction and wrote multiple opinions to achieve

12 See Mims v. Arrow Financial Services, LLC, 565 U.S. 368

(2012). In Mims the plaintiff filed a lawsuit in a federal district

court seeking damages for the defendant’s violation of a federal

statute that banned certain telemarketing practices and

explicitly vested adjudicative authority in (a) federal district

courts in lawsuits brought by states to enjoin those practices

and award damage to the states on behalf of their residents and

(b) state courts to provide redress in private actions for viola

tions of the statute. Defendant argued that the statute vested

exclusive adjudicative authority over private lawsuits in state

courts, and, therefore, the federal district court did not have

subject matter jurisdiction under 28 U.S.C. § 1331. This Court

unanimously rejected the defendant’s argument. Justice Ginsburg,

writing for the Court, stated in language equally applicable in

this case (Id. at 386-87):

Nothing in the text, structure, purpose, or legislative

history of the [federal anti-telemarketing statute]

calls for displacement of the federal-question juris

diction U.S. district courts ordinarily have under 28

U.S.C. § 1331. In the absence of direction from Con

gress stronger than any [the defendant] has advanced,

we apply the familiar default rule: Federal courts

have § 1331 jurisdiction over claims that arise under

federal law. .. . (Emphasis added.)

that result, even before an Answer was filed, a waste • *

of judicial resources. 13

Their search ended with the erection of an

unnecessary obstacle: Judicial amendment of 28 U.S.C.

§ 1331 adding a “cause of action” requirement to the

federal question requirement that contravenes the

purpose of 28 U.S.C. § 1331. Thus, according to the

Seventh Circuit, 28 U.S.C. § 1331 must include a

“right to sue to enforce the statute,” but 16 U.S.C.

§ 742b(b) “does not purport to create a right to sue to

enforce its provisions; indeed, it does not even prohibit

any conduct.” App.5a. Of course, that is wrong; at the

very least it implies that the President cannot violate

the statute.

The District Court relied primarily upon the

Seventh Circuit’s decision in E. Central El. Pipe Trades

Health & Welfare Fund v. Prather Plumbing &

Heating, Inc., 3 F.4th 954 (7th Cir. 2021). In that

case the plaintiffs sought to recover an existing

ERISA judgment from a newly-formed company under

the federal common law doctrine of successor liability.

The Seventh Circuit held that the issue of successor

liability under ERISA did not “arise under” a “law

. . . of the United States” within the meaning of 28

U.S.C. § 1331, stating:

Recall that [plaintiffs’] complaint alleged

that [defendant], as a successor to the nowdefunct Prather Plumbing Inc., is liable for

13 See Sackett v. EPA, 598 U.S. 651 (2023) (subject matter

jurisdiction provided by ‘law ... of the United States,” Clean

Water Act, 33 U.S.C. §§ 1251 et seq.; procedural framework pro

vided by DJA and APA, 5 U.S.C. § 702; together gave plaintiffs

right to maintain lawsuit).

the accounts Prather Plumbing owes to

[plaintiffs]. We have recognized that successor

liability in the ERISA domain is a creation of

federal common law. In that sense, [plain

tiffs’] complaint implicates federal law. But

it does not necessarily follow that federal

law has also created a cause of action to

enforce this doctrine in federal court.

3 F.4th at 960 (emphasis added). The District Court

in this case seized upon the Seventh Circuit’s “cause

of action” language in Prather Plumbing as the

obstacle that it sought to subject matter jurisdiction

in this case, but clearly the Seventh Circuit did not

use “cause of action” for that purpose. It was merely

stating that no question arose under the “laws ... of

the United States” within the meaning of 28 U.S.C.

§ 1331.

In stark contrast, this case arises squarely

under federal law, 16 U.S.C. § 742b(b); federal law is

not merely “implicated” as in Prather Plumbing.

Therefore, this case gives this Court the perfect

vehicle to set forth, once again, clearly and unequivo

cally, the scope and purpose of 28 U.S.C. § 1331,

which are to provide subject matter jurisdiction when

a question of U.S. law is involved without searching

for an obstacle such as “cause of action” that can be

erected to deny jurisdiction as the District Court and

Seventh Circuit have done in this case.

The Seventh Circuit did not even attempt to

explain its Prather Plumbing decision. It said only

that “the [District Court] correctly applied the law”

and cited Prather Plumbing.

The Seventh Circuit’s analysis in Prather - •

Plumbing included an important comparison of Peacock

v. Thomas, 516 U.S. 349 (1996), which denied juris

diction under 28 U.S.C. § 1331 because the plaintiff

failed to identify any ERISA or NLRA issue by viola

tion of a collective bargaining agreement, with its

decision in McCleskey v. CWG Plastering, LLC, 897

F.3d 899 (7th Cir. 2018), which applied the “same

framework” to uphold jurisdiction under 28 U.S.C.

§ 1331 because the plaintiff explicitly alleged a viola

tion of ERISA and the NLRA. 3 F.4th at 959-62. This

case, like McCleskey and unlike Peacock, involves

explicit allegations throughout the Complaint of a vio

lation of a federal statute, 16 U.S.C. § 742b(b).

B. Declaratory Judgment Act

Even if this Court concludes that the Seventh

Circuit’s judicial amendment of 28 U.S.C. § 1331 is

correct, which Petitioner denies, that is not the end

of the story. Instead 16 U.S.C. § 742b(b) works in

combination with the DJA to provide the necessary

framework for standing in this case. 14 The DJA

gives the courts the authority to interpret 16 U.S.C.

14 Petitioner acknowledges that the DJA itself does not itself

confer jurisdiction in this case. It permits declaratory relief

when an independent basis for federal subject matter jurisdic

tion exists (here 28 U.S.C. § 1331). The statutes work together

to provide jurisdiction and relief. See Skelly Oil Co. v. Philips

Petroleum Co., 339 U.S. 667, 671-72 (1950).

The title (“Creation of remedy”) and operative language (“ . .. any

court of the United States ... may declare the rights and other

legal relations of any party seeking such declaration. . . . Any

such declaration shall have the force and effect of a final judg

ment or decree.. . . ”) of 28 U.S.C. § 2201 are clear and unequiv

ocal.

§ 742b(b) (28 U.S.C. § 2201) and to enforce thatinterpretation (28 U.S.C. § 2202).

The purpose of the DJA - settle disputes as

early as possible to avoid litigation in the future - was

stated by the Fourth Circuit shortly after the DJA’s

enactment in the leading case of Aetna Casualty &

Surety Co. v. Quarles, 92 F.2d 321, 325 (4th Cir. 1937),

as follows:

The statute providing for declaratory judg

ments meets a real need and should be

liberally construed to accomplish the purpose

intended, i.e., to afford a speedy and in

expensive method of adjudicating legal dis

putes without invoking the coercive remedies

of the old procedure, and to settle legal

rights and remove uncertainty and insecurity

from legal relationships without awaiting a

violation of the rights or a disturbance of

the relationships. . . .

The two principal criteria guiding the policy

in favor of rendering declaratory judgments

are (1) when the judgment will serve a

useful purpose in clarifying and settling the

legal relations in issue, and (2) when it will

terminate and afford relief from the

uncertainty, insecurity, and controversy giving

rise to the proceeding. . ..

See Sears, Roebuck & Co. v. American Mut’l Liability

Ins. Co., 372 F.2d 435, 438 (7th Cir. 1967); Garanti

Finansal Kiralama v. Aqua Marine & Trading, Inc.,

697 F.3d 59, 66 (2d Cir. 2012).

The purpose of the DJA clearly is satisfied in

this case, since it is far better for the judicial system

to avoid future 16 U.S.C. § 742b(b) disputes now ••

than to await multiple cases in the future in which

the issue (and comparable issues in other cases ‘

involving Presidential appointments in violation of

statutory requirements) is presented to federal courts.

The term “actual controversy” in 28 U.S.C. § 2201

refers to “Controversies” that are justiciable under

Article III, Section 2, Clause 1 of the U.S. Constitution.

Medlmmune, Inc. v. Genentech, Inc., 549 U.S. 118,

126-27 (2007). This Court stated the “actual contro

versy” requirement as follows: “Basically, the ques

tion in each case is whether the facts alleged, under

all the circumstances, show that there is a substantial

controversy, between parties having adverse interests,

of sufficient immediacy and reality to warrant the

issuance of a declaratory judgment.” 15 Medlmmune

at 127, quoting Maryland Casualty Co. v. Pacific

15 The procedure for obtaining a declaratory judgment relief is

provided by Fed. R. Civ. P. (“FRCP”) 57. The Advisory Committee

Notes state:

A declaratory judgment is appropriate when it will

“terminate the controversy” giving rise to the pro

ceeding. Inasmuch as it often involves only an issue

of law on undisputed facts or relatively undisputed

facts, it operates frequently as a summary judgment

proceeding, justifying docketing the case for early

hearing...

The existence or nonexistence of any right, duty,

power, liability, privilege, disability, or immunity or

of any fact upon which such legal relations depend,

or of status, may be declared. The petitioner must

have a practical interest in the declaration sought.. . .

The demand for relief shall state with precision the

declaratory judgment desired, to which may be

joined a demand for coercive relief. . . .

Coal & Oil Co., 312 U.S. 270, 273 (1941). This Court-•

further stated that “our analysis must begin with the

recognition that, where threatened action by govern

ment is concerned, we do not require a plaintiff to

expose himself to liability before bringing suit to

challenge the basis for the threat. ...” Medlmmune

at 128-29 (emphasis by the Court). 16

16 In Union Pacific Railroad Co. v. Regional Transp. Authority,

74 F.4th 884 (7th Cir. 2023), Union Pacific (“Railroad”), which

supplied track, work force and ticket sales, notified the Regional

Transportation Authority (“Metra”), which owned the rolling

stock, that services would be discontinued. Metra replied that

Railroad could not discontinue services without approval from

the Surface Transportation Board, it contended that the earlier

repeal of the federal statutes giving the Board authority over

service discontinuation as part of deregulation of the industry

locked Railroad into its relationship with Metra. Railroad,

rejecting that argument on the ground that deregulation allowed

it to terminate the relationship at any time based on business

considerations, asked the District Court for a declaratory judg

ment under the DJA.

The District Court denied Metra’s motion to dismiss and granted

Railroad’s motion for summary judgment. The Seventh Circuit

affirmed (Id. at 886; italics in original; citations omitted):

In this court Metra. . . . contends that [Railroad]

lacks a case or controversy within the scope of

Article III. Metra asserts that this litigation is just

about establishing a framework that will affect the

price of service that the Railroad plans to continue

providing. But that’s not what [Railroad] says. It

contends that it is entitled to cease running trains

for Metra and that it wants to stop, but that it is con

cerned about the potential penalties for doing so if

Metra is right. The parties are at odds about a legal

issue with concrete consequences for them. Resolving

such dispute is a main function of the declaratory

judgment statute, 28 U.S.C. § 2201.

This case involves an actual controversy because

the parties dispute whether Respondent Williams

holds office in violation of 16 U.S.C. § 742b(b), a law

of the United States. The dispute is (a) between

parties having adverse interests; (b) immediate, because

Respondent Williams’ continuation in office as FWS

Director risks legal contamination of all FWS decisions

in which she participates, directly or indirectly, from

the present time (and before) to the time she leaves

officel7; and (c) real, because illegal decisions could

result in deaths of injuries to endangered and threat-.

ened species that are the subjects of those decisions.

It is essential that the courts involved in this case

determine that Respondent Williams occupies the

office of FWS Director illegally and order her removal

from office so that those immediate and real conse

quences of the legally contaminated FWS decisions

in which she has participated, and will participate,

can be eliminated or minimized.

The identical situation in principle is presented here. Petitioner

believes that Respondent Williams occupies the position of FWS

Director in violation of 16 U.S.C. § 742b(b). This federal ques

tion can be resolved in countless lawsuits in the future challenging

individual actions (e.g., removal of ESA protection for grizzly

bears) by Respondent FWS under the direction and with the

approval of Williams; or the federal question can be resolved in

this case pursuant to 28 U.S.C. § 1331 and the DJA with benefits

of the type involved in Union Pacific and savings of judicial

resources.

17 See Indiana Right to Life Victory Fund v. Morales, 112 F.4th

466, 469-70 (7th Cir. 2024); L.M.-M. v. Cuccinelli, 442 F.Supp.3d

1 (D. D. C. 2020); Behring Regional Center LLC v. Wolf, 544

F.Supp.3d 937 (N.D. Cal. 2021).

CONCLUSION

This Court has the opportunity to decide whether

a fundamental question of federal law, one of first

impression and national significance because of the

unique context, arising under a federal statute, 16

U.S.C. § 742b(b), must be decided by the District

Court. If the answer is yes, this case will be back on

course and Petitioner (and other plaintiffs who

challenge illegal officeholders) will have judicial

recourse. If the answer is no and the Seventh Circuit’s

superficial and erroneous decision is allowed to stand,

there is no pathway to challenge Presidential appoint

ments made in violation of statutory requirements,

even if intentional as apparently happened in this

case. Thus, congressional intent to limit Presidential

appointments to qualified persons can be flaunted at

will without fear of challenge; congressional qualifi

cations can be repealed as a practical matter without

legislative involvement. This clearly is a compelling

reason for this Court to grant this Petition; it can be

a consequential case in the development of the law

with regard to standing and subject matter jurisdic

tion.

This Court should grant this Petition; determine

that Petitioner has standing; determine that the Dis

trict Court has subject matter jurisdiction; and return

this case to the District Court with instructions to

decide the fundamental question of federal law under

16 U.S.C. § 742b(b) and grant the appropriate relief

under the DJA.

Respectfully submitted,

Robert H. Aland

Petitioner Pro Se

140 Old Green Bay Road

Winnetka, IL 60093-1512

(847) 784-0994

rhaland@comcast.net

September 23, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.