Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


February 7, 1989


June L. Green, United States District Judge.

The opinion of the court was delivered by: GREEN


 This matter is before the Court on plaintiffs Natural Resources Defense Council, Inc. and Environmental Defense Fund, Inc.'s ("NRDC") motion to clarify or amend the Court's Order of September 14, 1988; defendant Environmental Protection Agency's ("EPA") motion to alter or amend that same order; papers opposing and supporting that motion; and the entire record herein. For the reasons given below, the Court grants plaintiffs' motion and grants in part defendant's motion, for the limited purpose of clarifying the Court's September 14th Order. In all other respects, defendant's motion is denied.

 I. Background

 The woefully long history of this matter is set forth in some detail in the Court's Opinion of September 14, 1988, which is hereby incorporated by reference. In sum, by its opinion and order that day, the Court instructed the EPA to comply with its congressional mandate under section 112(b)(1)(B) of the Clean Air Act (the "Act"), 42 U.S.C. § 7412(b)(1)(B) (1981) and to take rulemaking action, at long last, with regard to the carcinogenic chemical benzene. Having formally listed benzene as a hazardous air pollutant in 1977, see 42 Fed. Reg. 29,332 (1977), the EPA was more than ten years in arrears of its duty to propose rulemaking at the time of the Court's order. See 42 U.S.C. § 7412(b)(1)(B).

 The Court's action did little to dampen the EPA's desire for further deferral of this rulemaking duty. By its motion to alter or amend the judgment, EPA repeats its summary judgment argument that section 112 of the Act does not impose a nondiscretionary duty on EPA to make formal determinations with respect to the sources of benzene emissions governed by the September 14th Order. Brief in Support of EPA's Motion to Alter or Amend the Judgment ("EPA Brief") at 3. Therefore, they ask the Court to vacate the summary judgment granted plaintiffs, and to grant instead defendants' motion to dismiss. Id. at 8. EPA also asserts that even if the Court's holding on the nature of this obligation were correct, the timetable for compliance set forth in the September 14th Order would be contrary to the deadlines contained in section 112 of the Act. Id. Thus, they urge the Court to delete the requirement that EPA make final determinations on whether or not to regulate certain benzene sources by March 13, 1989. Id. at 9. Finally, EPA asks that if the Court does sustain summary judgment, it should exercise its discretion to permit EPA an extended timetable for rulemaking. Id. EPA claims that the public interest would be ill-served by reassignment of EPA priorities and resources to address these benzene sources, id. at 12, and that, in any event, the order allows insufficient time to amass the data needed for the task. Id. at 15.

 Plaintiffs' response to this motion is twofold. First, they maintain that the Court should deny the motion simply because EPA only renews issues and arguments already decided by the Court at the time of summary judgment. Plaintiffs' Brief in Opposition to U.S. EPA's Motion to Alter or Amend the Judgment ("NRDC Opposition") at 2-3. Second, they insist that the statutory timetable be enforced literally and immediately to prevent further abuse of the statutory purpose and public welfare. Id. at 6, 10-11. Their only point of agreement with EPA concerns the Court's use of the term "final determination" in the September 14th Order. Id. at 17. Plaintiffs would substitute the words "proposed regulations" for this term in the order, but maintain the timetable as it is written. Id.

 Plaintiffs initiated this series of post-judgment motions with a motion to clarify or amend the September 14th Order. In that submission, they asked that the Court retain jurisdiction over the case and enter appropriate orders to promote settlement of plaintiffs' claim for legal fees and costs. Brief in Support of NRDC's Motion to Clarify or Amend this Court's Order of September 14, 1988 ("NRDC Brief") at 2. EPA has not opposed or answered this motion directly.

 II. Discussion

 A. The Motion to Alter or Amend

 EPA bases its argument for vacating the September 14th Order on a belief that "the Court erroneously concluded that section 112 imposes a non-discretionary duty on EPA to make formal determinations whether or not to regulate every source of benzene emissions." EPA Brief at 2-3. This issue, and EPA's arguments concerning it, were considered fully by the Court during its determination of the summary judgment and dismissal motions. See September 14th Opinion at 12-19. Compare Supplemental Brief of Defendant U.S. EPA (filed Oct. 6, 1987) at 10-15 and Reply Brief of Defendant U.S. EPA (filed Nov. 5, 1987) at 2-4 with EPA Brief at 3-8. For this reason, NRDC contends that EPA's Rule 59(e) motion to alter or amend, Fed. R. Civ. P. 59(e), must be denied. NRDC Opposition at 3. For its part, EPA has not even attempted a rebuttal of this argument. See generally Reply Brief in Support of EPA's Motion to Alter or Amend the Judgment.

 While the D.C. Circuit has intimated a narrow reading of the scope of a Rule 59(e) motion to alter or amend judgment, Chastain v. Kelley, 167 U.S. App. D.C. 11, 510 F.2d 1232, 1238 n.7 (D.C. Cir. 1975) ("It is not clear. . . that a movant under Rule 59(e) may seek to 'alter or amend' a judgment simply because it is erroneous." (citation omitted)), the Court has found no local authority determining clearly the bounds of such a motion. However, the weight of authority elsewhere supports the view that Rule 59(e) motions which seek simply "to relitigate old issues" heard at the underlying trial or motion are without merit. Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986); see also Youmans v. Simon, 791 F.2d 341, 349 (5th Cir. 1986) (Rule 59(e) motion that merely restated the arguments raised in movants' motion for a new trial was answered already by the court's decision of the underlying merits of the case). Accord MGIC Indemnity Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (affirming district court's imposition of Rule 11 sanctions upon finding a Rule 59(e) motion "frivolous because it introduced nothing new"); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (Rule 59(e) motion denied properly where movant "presented no arguments that had not already been raised in opposition to summary judgment"); Agola v. Hagner, 678 F. Supp. 988, 991 (E.D.N.Y. 1987) ("A motion under Rule 59 is not intended merely to relitigate old matters already considered or give a disappointed litigant another chance." (citation omitted)); All Hawaii Tours, Corp. v. Polynesian Cultural Center, 116 F.R.D. 645, 648-50 (D. Haw. 1987) (district court imposing Rule 11 sanctions upon finding a Rule 59(e) motion frivolous for, inter alia, reiterating arguments heard already on the underlying motion for summary judgment); Great Hawaiian Financial Corp. v. Aiu, 116 F.R.D. 612, 617 (D. Haw. 1987) ("a motion for reconsideration that presents no arguments that have not already been raised in opposition to summary judgment should be denied" (citing Backlund)); Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390-91 (D.P.R. 1981) (Rule 59(e) motion that merely reasserts legal arguments previously made on motion for summary judgment provides no basis for vacating the judgment); Illinois Cent. Gulf R. Co. v. Tabor Grain Co., 488 F. Supp. 110, 122 (N.D. Ill. 1980) (Rule 59(e) motion based on a "rehash of the arguments previously presented affords no basis for a revision" of the judgment); Durkin v. Taylor, 444 F. Supp. 879, 889-90 (E.D. Va. 1977) ("Whatever may be the purpose of Rule 59(e) it should not be supposed that it is intended to give an unhappy litigant one additional chance to sway the judge."); Blair v. Delta Air Lines, Inc., 344 F. Supp. 367, 368 (S.D. Fla. 1972) (Rule 59(e) motion inappropriate where movant seeks redetermination of the issues decided on the motion for summary judgment), aff'd per curiam, 477 F.2d 564 (5th Cir. 1973); Erickson Tool Co. v. Balas Collet Co., 277 F. Supp. 226 (N.D. Ohio 1967) (purpose of Rule 59(e) is not to grant relief where grounds for motion are substantially the same as those employed unsuccessfully in an earlier motion, and movant now seeks complete reversal of that prior judgment), aff'd on other grounds, 404 F.2d 35 (6th Cir. 1968). But see Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir. 1984) (a Rule 59(e) motion for reconsideration is valid for purposes of tolling the time to appeal, "even if it raises no new grounds but 'simply rehashes arguments heard at trial' . . ." (quoting Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1249 (9th Cir. 1982), cert. denied, 459 U.S. 1227, 75 L. Ed. 2d 468, 103 S. Ct. 1234 (1983))). *fn1"

 It is well-established that a proper Rule 59(e) motion may urge a court to reconsider or vacate a prior judgment. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see also Appeal of Sun Pipe Line Co., 831 F.2d 22, 24-25 (1st Cir. 1987), cert. denied, 486 U.S. 1055, 108 S. Ct. 2821, 100 L. Ed. 2d 922 (1988); United States v. Eastern Air Lines, Inc., 792 F.2d 1560, 1562 (11th Cir. 1986); A.D. Weiss Lithograph Co. v. Illinois Adhesive Products Co., 705 F.2d 249, 250 (7th Cir. 1983) (per curiam); Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.), cert. dismissed, 444 U.S. 986, 62 L. Ed. 2d 415, 100 S. Ct. 495 (1979); Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d 858, 859 (3d Cir. 1970); American Train Dispatchers Association v. Norfolk and Western Railway Co., 627 F. Supp. 941, 949 (N.D. Ind. 1985) (citing Clipper Exxpress); Parks v. "Mr. Ford ", 68 F.R.D. 305, 308-09 (E.D. Pa. 1975); American Fam. L. Assur. Co. v. Planned Mktg. Assoc., Inc., 389 F. Supp. 1141, 1144 (E.D. Va. 1974). However, a crucial distinction must be made concerning the grounds upon which such motions may be based. *fn2"

 Rule 59(e) motions are not vehicles for bringing before the court theories or arguments that were not advanced earlier. Fontenot, 791 F.2d at 1219; All Hawaii Tours, 116 F.R.D. at 650; Smith v. Stoner, 594 F. Supp. 1091, 1118 (N.D. Ind. 1984); Davis v. Lukhard, 106 F.R.D. 317, 318 (E.D. Va. 1984), vacated as moot, 788 F.2d 973 (4th Cir.), cert. denied, 479 U.S. 868, 107 S. Ct. 231, 93 L. Ed. 2d 157 (1986); Johnson v. City of Richmond, 102 F.R.D. 623, 623-24 (E.D. Va. 1984). But see Sun Pipe Line, 831 F.2d at 25 (court has great discretion as to hearing new theories on a Rule 59(e) motion). Nor may the motion present evidence which was available but not offered at the original motion or trial. Fontenot, 791 F.2d at 1219; Kohl by Kohl v. Woodhaven Learning Center, 676 F. Supp. 945, 948 (W.D. Mo. 1987); Frito-Lay, 92 F.R.D. at 391. But see Sun Pipe Line, 831 F.2d at 25 (court's discretion includes hearing new material on Rule 59(e) motion). Rather, the motion must rely on one of three major grounds: "(1) an intervening change in controlling law; (2) the availability of new evidence [not available previously]; and (3) the need to correct clear error [of law] or prevent manifest injustice." All Hawaii Tours, 116 F.R.D. at 649 (citations omitted). Cf. Sun Pipe Line, 831 F.2d at 24 (motion proper under Rule 59(e) where it claimed an erroneous legal result); A.D. Weiss, 705 F.2d at 250 (Rule 59(e) motion may ask court to correct errors of law); Agola, 678 F. Supp. at 991 (Rule 59(e) motion must do more than seek reconsideration ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.