                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 NATIONAL WILDLIFE FEDERATION,
 et al.,

         Plaintiffs,

                v.                                       Civil Action No. 14-1701 (JDB)
 U.S. ARMY CORPS OF ENGINEERS, et
 al.,
         Defendants.



                                MEMORANDUM OPINION

       On March 14, 2016, the Court granted the U.S. Army Corps of Engineers’ cross-motion

for summary judgment insofar as it requested dismissal of plaintiff conservation groups’ suit for

lack of standing. The conservation groups timely filed a motion to alter or amend the judgment

pursuant to Federal Rule of Civil Procedure 59(e). In their motion, they contend that the Court

improperly dismissed the case without providing them an opportunity to specifically address the

redressability prong of Article III standing. The Corps opposes the motion on the ground that, in

fact, the conservation groups had the chance to make these standing arguments at the motions

hearing. The Court agrees with the Corps and will deny the motion.

                                 PROCEDURAL HISTORY

       The conservation groups brought this lawsuit to challenge the Corps’ decision to reissue

nationwide permit 13 (“NWP 13”), which authorizes the discharge of dredge and fill material to

construct bank stabilization projects. Second Am. Compl. [ECF No. 15]. In its cross-motion for

summary judgment, the Corps argued that plaintiffs had not met their burden to demonstrate

Article III standing. Defs.’ Cross-Mot. Summ. J. [ECF No. 25] at 13–16. Plaintiffs’ six standing

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declarations, the Corps argued, failed to identify an injury-in-fact. Id. For the most part the Court

agreed, but with one exception. The Court found that plaintiffs had identified an aesthetic and

recreational harm to one declarant caused by existing bulwarks. Nat’l Wildlife Fed. v. U.S. Army

Corps of Eng’rs, No. 14-1701, 2016 WL 1048767, at *4 (D.D.C. Mar. 14, 2016). But the very

narrow nature of this injury implicated another standing requirement, redressability: could this

particular injury be redressed by the relief plaintiffs sought? At a motions hearing held on January

19, 2016, the Court pressed the conservation groups to explain how their complaint, which sought

relief only with regard to future projects, could encompass this specific injury. Relying on that

colloquy, the Court held that the relief sought could not redress an aesthetic injury from an existing

bulkhead, and hence plaintiffs did not have standing. Id. at *5–6.

                                          DISCUSSION

       A Rule 59(e) motion should be granted if the court “finds that there is an intervening change

of controlling law, the availability of new evidence, or the need to correct a clear error or prevent

manifest injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal quotation

marks omitted). The conservation groups seek to have the judgment in this case vacated on the

grounds that (1) the Court should have allowed the parties to brief the redressability issue and/or

(2) the Court should have given the conservation groups leave to amend to cure the standing defect

before dismissing the case. Pls.’ Mot. Alter J. [ECF No. 34] at 2, 5. Plainly, these arguments do

not assert a change of controlling law or new evidence. It is less obvious whether they rely on

“clear error” or “manifest injustice” or both. In any event, neither argument convinces the Court

that Rule 59(e) relief is appropriate.

       The conservation groups assert that “the Court should have given [them] the opportunity

to fully brief and be heard on the specific issue of redressability before dismissing the case.” Pls.’



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Mot. at 2. This argument relies principally on cases that are critical of “‘[s]ua sponte dismissals

without prior notice or opportunity to be heard.’” Id. (quoting Joyce v. Joyce, 975 F.2d 379, 386

(7th Cir. 1992)). But the Court’s judgment here was not sua sponte, that is, “[w]ithout prompting

or suggestion.” Black’s Law Dictionary 1560 (9th ed. 2009). Rather, plaintiffs’ lack of standing

was a focal point of defendants’ cross-motion for summary judgment. It was fully briefed by both

sides, and then at the motions hearing the Court laid out the matters it expected to hear about,

including “a standing issue.” Hr’g Tr. [ECF No. 35] 5:22–23. Article III standing comprises three

well-known elements, including that the injury is “likely to be redressed by a favorable decision.”

In re: Idaho Conservation League, 811 F.3d 502, 508 (D.C. Cir. 2016). For the conservation

groups to claim that they knew standing was challenged, but were caught unaware by the

redressability inquiry, is slicing the issue too thin—indeed it defies credulity.

       And even assuming that the Court raised the question of redressability “on its own motion,”

the conservation groups received adequate notice and an opportunity to be heard at the January 19,

2016, motions hearing. During plaintiffs’ initial argument, the Court flagged its skepticism about

the connection between the injury allegedly caused by an existing bulkhead and the prospective

relief sought. The Court inquired whether this was a live issue: “If [the] Bull River [bulkhead]

was completed actually before you filed your complaint, I don’t see how the complaint

encompasses it.” Hr’g Tr. at 33:10–14. And the Court indicated that plaintiffs’ counsel should

address the impact of this issue on assessing standing. Id. at 34:10–16. The possible dissonance

between the relief sought and the injury alleged was again raised by the Court in its question to

government counsel: “[G]iven the fact that the [Bull River] project was completed before the

complaint was filed, and as I read the complaint, the complaint seeks declaratory relief with respect

to Nationwide Permit 13 and seeks future injunctive relief with respect to future projects under



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Nationwide Permit 13. So does the complaint properly encompass a challenge to a completed

project?” Id. at 63:13–19. The conversation from there turned to mootness and the government

answered that as far as prudential mootness went, “we think the Court has discretion to say that

this is moot because the plaintiffs are not asking for relief that is available.” Id. at 64:3–5. All this

goes to show that even if the Court did raise redressability on its own, plaintiffs were on notice at

the hearing of the Court’s concern and had the opportunity at that time to explain how the relief

they sought in the complaint could encompass an injury caused by already completed bulkheads.

Id. at 67:10–11 (The Court: “I’ll give [plaintiffs’ counsel] a chance to respond to anything that

came up with respect to standing.”). And in the intervening two months between the hearing and

this Court’s decision, plaintiffs could have sought to provide further information to the Court on

this obvious concern. But they did not.

        Plaintiffs now wish they had devoted more attention to the issue of redressability, and in

particular believe they should have had the opportunity to provide additional briefing on the matter.

They cite Prakash v. American University, 727 F.2d 1174, 1179–80 (D.C. Cir. 1984), as support

for their position that the Court should have given them an opportunity “to fully brief . . . the

specific issue of redressability.” But Prakash is distinguishable. There, the district court had made

a jurisdictional decision “on the paper record” when the declarant’s credibility was at issue. Id. at

1180. In that circumstance, the district court was required to “hold a hearing in order to adequately

assess credibility.” Id. But the court of appeals confirmed that, normally, a court “may rely upon

either written or oral evidence.” Id. at 1179–80. Here, the Court finds no basis to hold that parties

who have had a full opportunity to argue the jurisdictional issue must also be afforded a

supplemental briefing opportunity. It was not error in this case to decide standing on the record




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before the Court at the conclusion of the motions hearing, which specifically addressed

redressability.

        Nor did the Court commit error when it dismissed the case without providing the

conservation groups leave to amend their complaint. Once again, the conservation groups cite

cases dealing with sua sponte dismissals, see Pls.’ Mot. at 5 (citing Plummer v. Mayor, D.C., 371

F. App’x 106, 107 (D.C. Cir. 2010)), but the dismissal here was not on the Court’s own motion.

It was based on the government’s motion, which argued that plaintiffs lacked standing, and

followed a hearing specifically addressing redressability. Moreover, plaintiffs did not seek leave

to amend their already amended complaint at any time prior to the Court’s March 14 decision.

Rule 15(a) plainly “applies only when the plaintiff actually has moved for leave to amend the

complaint.” Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006).

        As far as the Court can tell, plaintiffs’ motion for reconsideration rests on two alleged

procedural errors: failure to allow for additional briefing or to grant leave to amend. As explained

above, these supposed errors are not grounds for Rule 59(e) relief. Nowhere in their motion do

they argue that the Court’s redressability assessment itself constituted clear error. The Court will

not grant extraordinary relief under Rule 59 based on an argument not made. 1




        1
          Had they made such an argument, the conservation groups would have had to show that the
remedial measures available to the Corps upon vacatur include options that could remedy their only injury-
in-fact. Removal—which could obviously redress the aesthetic injury—was expressly disavowed. And
whether mitigation—an option not previously identified—can remedy an aesthetic injury is disputed.
Compare Pls.’ Mot. at 6 (arguing that mitigation could address the aesthetic injury-in-fact), with Defs.’
Opp’n [ECF No. 36] at 7 (“[Mitigation] would not ameliorate the visual injury caused by the bulkhead’s
presence.”). Plaintiffs’ citation to 33 C.F.R. § 326.3, which explains the process of after-the-fact permitting
in general terms, would not be enough on its own to convince the Court that its original redressability
analysis was clearly erroneous. See Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233
(7th Cir. 1988) (“To be clearly erroneous, a decision must strike [a court] as more than just maybe or
probably wrong; it must . . . strike [the court] as wrong with the force of a five-week-old, unrefrigerated
dead fish.”).

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       It is nonetheless apparent that behind plaintiffs’ post-hoc requests to provide additional

briefing or to amend the complaint is their belief that had they “better explained how [their] injuries

could be redressed both in [their] complaint and at oral argument . . . the Court could have found

that the conservation groups have standing.” Pls.’ Mot. at 6. They now point out that if NWP 13

were vacated, the Corps would have the authority to remove existing bulkheads or require

additional mitigation. See id. (citing 33 C.F.R. § 326.3). There was a time and a place, though,

for plaintiffs to seek relief for injuries caused by existing bulkheads. First, plaintiffs could have

done so in their complaint. In fact, one of the cases they cite demonstrates how a party may seek

“the remedies of remediation and mitigation” in its complaint. Ogeechee-Canoochee Riverkeeper,

Inc. v. T.C. Logging, Inc., No. 608CV064, 2009 WL 2390851, at *8 (S.D. Ga. Aug. 4, 2009). But

plaintiffs did not identify such relief in their complaint or in the briefing of this case. Second,

plaintiffs should have done so when pressed by the Court at oral argument to clarify their position

regarding existing bulkheads. The Court inquired: “Your complaint only seeks relief with respect

to Nationwide Permit 13 and future projects under Nationwide Permit 13. . . . [I]t doesn’t seem to

me that [the Bull River bulkhead is] actually covered by your complaint.” Hr’g Tr. at 33:10–22.

Plaintiffs’ counsel responded: “I see what you’re saying, Your Honor.” Id. at 33:23. Given that

agreement, the Court continued: “[Y]ou need to think about it for standing purposes as well,

because if that’s true, it may relate to standing as well.” Id. at 33:24–34:1. Plaintiffs’ counsel

agreed. Id. at 34:2. The Court then took care to repeat the possible consequences of this line of

reasoning:

               [A]s a specific claim in the case, it doesn’t seem to me that [the Bull
               River bulkhead is] covered by your complaint, by the relief you
               seek, and because it was done before the complaint was filed, and
               that may have some impact on assessing standing with respect to the
               declarations that have been submitted and any reference to that
               particular project.


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Id. at 34:11–16. Plaintiffs’ counsel responded: “Okay.” Id. at 34:17. Finally, the Court indicated

that plaintiffs’ counsel should address the impact of this issue on standing. Id. at 34:18. And yet,

on rebuttal, plaintiffs’ counsel made no attempt to correct the Court’s understanding of the

conservation groups’ position: that the complaint only sought relief with respect to future projects

and that an existing bulkhead was therefore not “actually covered by the complaint,” and that this

mismatch could affect standing. In particular, plaintiffs’ counsel never clarified that the relief they

sought included a remedy for existing projects, which might be accomplished by mitigation. And

he explicitly agreed that the conservation groups did not seek relief that would require tearing out

an existing bulkhead. Id. at 33:3–9. The Court does not see any error in accepting or relying on

the conservation groups’ own representations—or lack thereof—at oral argument, after repeated

inquiry from the Court.

       A Rule 59(e) motion cannot “be used to relitigate old matters, or to raise arguments or

present evidence that could have been raised prior to the entry of judgment.’” Exxon Shipping

Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (internal quotation marks omitted). Nor is it a “chance

for [a party] to correct poor strategic choices.” SEC v. Bilzerian, 729 F. Supp. 2d 9, 15 (D.D.C.

2010). “The strictness with which such motions are viewed is justified by the need to protect both

the integrity of the adversarial process in which parties are expected to bring all arguments before

the court, and the ability of the parties and others to rely on the finality of judgments.” U.S.

Commodity Futures Trading Comm’n v. McGraw-Hill Cos., 403 F. Supp. 2d 34, 36 (D.D.C.

2005). For these reasons, the Court will not grant Rule 59(e) relief on the basis of standing

arguments that the conservation groups had a full and fair opportunity to present.

                                          CONCLUSION




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       Hindsight is 20-20, and in light of the Court’s standing determination, the conservation

groups now see more clearly the full implications of the Court’s line of questioning at the motions

hearing. And had they presented the arguments then that they articulate now, the Court may have

also had a clearer view of their currently stated position. But the fact that additional briefing could

have been helpful does not mean that the Court’s decision to resolve this case following full

briefing and oral argument—including specific questioning of plaintiffs’ counsel—was in error.

       Because the Court will deny plaintiffs’ motion to amend the judgment, the post-judgment

request to amend the complaint will be denied as moot. See Ciralsky v. CIA, 355 F.3d 661, 673

(D.C. Cir. 2004).




                                                                        /s/
                                                                 JOHN D. BATES
                                                            United States District Judge
Dated: July 8, 2016




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