Tennessee ex rel. Slatery v. Tenn. Valley Auth.

STATE OF TENNESSEE ex rel. HERBERT H. SLATERY III,in his official capacity as the Attorney General and Reporter of Tennesseeand ROBERT J. MARTINEAU, JR.,Commissioner of the Tennessee Department of Environment and Conservation, Plaintiffs,andTENNESSEE CLEAN WATER NETWORKand TENNESSEE SCENIC RIVERS ASSOCIATION, Plaintiff-Intervenors, v. TENNESSEE VALLEY AUTHORITY, Defendant.

NO. 3:17-cv-01139

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

June 22, 2018

CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION

This matter is before the Court on the "emergency motion" of the Tennessee Valley Authority ("TVA") to stay execution of the Court's remand Order or, in the alternative, to alter or amend the remand Order under Federal Rule of Civil Procedure 59(e). (Doc. No. 29.) Plaintiffs (collectively, the "State") have filed an opposition (Doc. No. 36) that Plaintiff-Intervenors ("Citizens Groups") have joined (Doc. No. 37). The Court will deny the motion.

On May 14, 2018, the Court entered a Memorandum Opinion granting the State's and Citizens Groups' motions to remand.¹ (Doc. Nos. 27, 28.) The Court concluded:

The initial complaint fairly apprised the TVA of the nature of this litigation. The TVA consented to have the case tried in the state courts by not timely seeking removal. To allow revival of the right to remove based on the amended complaint would undercut the 30-day limitation period without serving the policy behind the revival exception, if that exception is viable as a matter of law, because the changes that have occurred have not sufficiently altered this litigation. Accordingly, remand is proper.

(Id. at 22-23.)

The next day, TVA filed an "emergency motion" to stay or, in the alternative, alter or amend. (Doc. No. 29.) After setting an expedited briefing schedule, the Court ordered the Clerk of Court to refrain from executing the remand until a response was filed and the Court ruled.² (See Doc. Nos. 31, 32, 32-1, 33, 33-1, 34.) Shortly after briefing was completed on this motion, TVA filed a Notice of Appeal of the Court's remand Memorandum Opinion and Order. (Doc. No. 39.)

A. Rule 62

TVA's motion sought an order "confirming that execution of the remand Order is automatically stayed for fourteen days" because it is subject to Federal Rule of Civil Procedure 62(a). (Doc. No. 30 at 1.) In its response, the State does not contest that the remand order is covered by Rule 62(a). (Doc. No. 36 at 2.) The Court agrees that the remand order is appealable and wassubject to the 14-day automatic stay provision of Rule 62(a).³ TVA appealed the remand Memorandum Opinion and Order within the 14-day stay period, and thus now seeks a further stay of execution of the remand under Rule 62(a) pending that appeal.⁴ (Doc. No. 30 at 3.)

B. TVA's Notice of Appeal and Authority of the Court

TVA filed its Notice of Appeal within the 14-day automatic stay of execution provided by Rule 62, but before the Court ruled on the instant motion to stay or, in the alternative, alter or amend the remand Order pursuant to Rule 59. Under Federal Rule of Appellate Procedure 4(a), when a party files a notice of appeal after the district court enters a judgment but before it disposes of a pending Rule 59 motion, the notice of appeal becomes effective only when the order disposing of the Rule 59 motion is entered. Fed. R. App. P. 4(a)(4)(B)(i). Stated differently, "the concept of 'effectiveness' . . . delay[s] the transfer of jurisdiction to the appellate court from an otherwisetimely filed notice of appeal until the relevant post-judgment motion is decided." Wikol ex rel. Wikol v. Birmingham Pub. Sch. Bd. of Educ., 360 F.3d 604, 609 (6th Cir. 2004); see also Patterson v. Anderson, 586 F. App'x 657, 662 (6th Cir. 2014) (("[T]he timely filing of a motion listed in Rule 4(a)(4)(A) . . . has been held to suspend or render dormant a notice of appeal.").⁵ Accordingly, this Court has jurisdiction to decide both the Rule 59 Motion and request for a stay pending appeal.⁶

C. Request to Alter or Amend Under Rule 59

Under Rule 59, a court may alter or amend a judgment based on: (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice. Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010); Roger Miller Music, Inc. v. Sony/ATV Publ'g, LLC, 477 F.3d 383, 395 (6th Cir.2007); Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005). However, a motion under Rule 59(e) is not a vehicle for presenting new legal arguments that could have been raised before a judgment was issued. Roger Miller Music, 477 F.3d at 395; see also Leisure Caviar, 616 F.3d at 616 (noting that a movant "cannot use a Rule 59 motion to raise arguments which could, and should, have been made before judgment issued"). Critically, "[a] motion under Rule 59(e) is not an opportunity to reargue a case." Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Likewise, a Rule 59(e) motion "should not be utilized to submit evidence which could have been previously submitted in the exercise of reasonable diligence." Kenneth Henes Special Projects Procurement v. Cont'l Biomass Indus., 86 F. Supp. 2d 721, 726 (E.D. Mich. 2000) (citation omitted). "The grant or denial of a Rule 59(e) motion is within the informed discretion of the district court, reversible only for abuse." Scotts Co. v. Cent. Garden & Pet Co., 403 F.3d 781, 788 (6th Cir. 2005) (citation and internal quotation marks omitted), abrogated on other grounds, Allied Indus. Scrap, Inc. v. OmniSource Corp., 776 F.3d 452 (6th Cir. 2015).

TVA moves for relief from the Court's remand Order only on the ground of manifest injustice.⁷ (Doc. No. 30 at 15-16.) While the Sixth Circuit has not specifically defined manifest injustice, it has stated that "the plain meaning of those words is instructive." Volunteer Energy Servs. Inc. v. Option Energy, LLC, 579 F. App'x 319, 330-31 (6th Cir. 2014). Namely, "[m]anifest injustice is defined as '[a]n error in the trial court that is direct, obvious, and observable, such as a defendant's guilty plea that is involuntary or that is based on a plea agreement that the prosecutionrescinds.'" Bradley J. Delp Revocable Trust, 665 F. App'x at 530 (citing BLACK'S LAW DICTIONARY 982 (8th ed. 2004)). The Court of Appeals has further stated: "Of course, as the examples suggest, more than a clear error is required; injustice must also result." Volunteer Energy Services, Inc., 579 F. App'x at 331. The manifest injustice standard presents a party "with a high hurdle." Westerfield v. United States, 366 F. App'x 614, 620 (6th Cir. 2010).

TVA's manifest injustice argument is fundamentally flawed because TVA makes no real argument regarding "an error in the trial court that is direct, obvious, and observable." Adverse substantive rulings do not become "obvious errors" in the trial court simply because a party so hopes. To any extent TVA expects the Court to "read into" TVA's Rule 59 motion all of TVA's arguments concerning likelihood of success on the merits, the Court has addressed and rejected each argument on the revival exception. (Doc. No. 27.) TVA also simply and explicitly reiterates its "irreparable harm" arguments from the stay portion of this motion, discussed below in Section D. (See Doc. No. 30 at 15-16.) While it may be understandable that TVA would like to get a second bite at the apple regarding these arguments, aiming at Rule 59's manifest injustice "high hurdle" is not the appropriate means. TVA offers no persuasive precedent that equates its irreparable harm legal arguments to manifest injustice. In sum, by means of its reference to Rule 59, TVA does no more than impermissibly "reargue its case" against the remand and for a stay. Sault Ste. Marie Tribe of Chippewa Indians, 146 F.3d at 374. TVA's Rule 59 Motion is therefore denied.

D. Merits of Request for Stay

Beyond seeking relief under Rule 59, TVA asks the Court to halt its remand Order under traditional legal principles governing stays. On this ground, however, TVA fares no better.

1. Applicable Law

"A stay is an intrusion into the ordinary processes of administration and judicial review." Dodds v. United States Dep't of Educ., 845 F.3d 217, 220 (6th Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).⁸ A stay is not a matter of right, "even if irreparable injury might otherwise result." Nken, 556 U.S. at 433 (citing Virginian R. Co. v. United States, 272 U.S. 658, 672 (1926)). "It is instead 'an exercise of judicial discretion,' and '[t]he propriety of its issue is dependent upon the circumstances of the particular case.'" Id. (citing Virginian R. Co., 272 U.S. at 672-673). "The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion." Id. at 433-34 (citing Clinton v. Jones, 520 U.S. 681, 708 (1997)). "Discretion is not whim." Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005). "[A] motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.'" Id. (quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.)).

The Supreme Court has distilled the key legal principles regarding stays into consideration of four factors:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.

Id. (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); see also Ohio St. Conference of N.A.A.C.P. v. Husted, 769 F.3d 385, 387 (6th Cir. 2014).⁹ Although these factors are "interrelated considerations that must be balanced," In re EPA, 803 F.3d 804, 806 (6th Cir. 2015), ...