Bennett v. Donovan

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ROBERT BENNETT, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 11-0498 (ESH)
)
SHAUN DONOVAN )
Secretary, Housing and Urban )
Development )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiffs sued Shaun Donovan in his official capacity as the Secretary of the Department
of Housing and Urban Development (“HUD”) challenging the validity of regulations
implementing HUD’s Home Equity Conversion Mortgage (“HECM”) program. (Compl., Mar. 8,
2011 [ECF No. 1].) Initially this Court dismissed plaintiffs’ case for lack of standing on
redressability grounds. See Bennett v. Donovan, 797 F. Supp. 2d 69, 74-78 (D.D.C. 2011). The
Court of Appeals reversed. See Bennett v. Donovan, 703 F.3d 582, 590 (D.C. Cir. 2013). On
remand, this Court granted summary judgment for plaintiffs holding that HUD regulations
violated the Housing and Community Development Act of 1987’s requirement that reverse
mortgage loan obligations must be deferred until the death of both the homeowner and the
homeowner’s spouse. Bennett v. Donovan, 2013 WL 5424708, at *5 (Sept. 30, 2013). The
Court remanded the case to HUD for further proceedings consistent with that opinion. (Order,
Sept. 30, 2013 [ECF No. 43].) Relying on Fed. R. Civ. P. 59 and 65, plaintiffs now seek to
amend that remedy to include injunctive relief. (Pls.’ Mot. to Alter or Amend J., Oct. 28, 2013
[ECF No. 44] (“Mot.”), at 4.) For the reasons stated below, plaintiffs’ motion will be denied.
BACKGROUND
Plaintiffs filed their initial complaint on March 8, 2011. Shortly thereafter, they filed for
a preliminary injunction to prevent their mortgagees (lenders) from foreclosing on their homes
while the case was pending. (Mot. for Preliminary Injunction, March 31, 2011 [ECF No. 2].) In
exchange for plaintiffs withdrawing their preliminary injunction motion, defendants agreed to
ask plaintiffs’ lenders to suspend any foreclosure actions until the case was resolved and the
lenders immediately complied. (See Mot. at 2; Notice of Withdrawal of Mot. for Preliminary
Injunction, April 8, 2011 [ECF No. 11].)
Following remand from the Court of Appeals, this Court issued a Memorandum Opinion
on September 30, 2013, granting plaintiffs’ motion for summary judgment and remanding the
case to HUD for further proceedings consistent with that opinion. See Bennett, 2013 WL
5424708, at *7 (Sept. 30, 2013). Though successful on the merits, plaintiffs were dissatisfied
with the Court’s remedy. Plaintiffs therefore requested that defendant consent to a motion to
amend the Court’s judgment to require defendant “not to instruct lenders to foreclose” and to
“take any action necessary to prevent foreclosures against plaintiffs’ homes,” while the agency
considered the issue on remand. (See Mot. at 1-2 & n.1). In the alternative, plaintiffs requested
that the defendant agree to make an on-the-record stipulation to this effect. (Id. at 1 n.1.) In
plaintiffs’ view, this request was “narrowly tailored to maintain[] the status quo while Defendant
complie[d] with the Court’s judgment and order.” (Id. at 1.)
Defendants declined to join plaintiffs’ motion or enter such a stipulation. 1 (Id. at 1 n.1;
Def.’s Opp. to Pls.’ Mot. to Alter or Amend J., Nov. 8, 2013 [ECF No. 45] (“Opp.”), at 7.) From
1
It should be noted that defendant may still seek to challenge this Court’s opinion on the merits. On
November 26, 2013, defendant filed a notice of appeal to the D.C. Circuit. (See ECF No. 47.)
2
defendant’s perspective, the agreement to maintain the status quo during the pendency of the
litigation was not affected by this Court’s September 30 Memorandum Opinion and Order. (Opp.
at 6.) Though the agency argues that it “does not possess the statutory authority to compel
mortgagees to refrain from foreclosure,” it has “never altered or withdrawn . . . and has reiterated
its request that mortgagees refrain from foreclosure during the period of any remand to HUD.”
(Id. (citing Bene Decl.).) As of October 28, 2013, the mortgagees informed defendant that the
relevant foreclosure proceedings remain on hold per the Agency’s request. (Bene Decl. ¶ 6.).
Yet, unsatisfied by defendant’s assurances, plaintiffs filed the present motion.
ANALYSIS
I. STANDARD OF REVIEW
A. Motion to Alter or Amend Judgment Under Rule 59(e)
District courts have substantial discretion in ruling on motions under Fed. R. Civ. P.
59(e). Piper v. U.S. Dep’t of Justice, 312 F. Supp. 2d 17, 20 (D.D.C. 2004) (“The district court
has considerable discretion in ruling on a Rule 59(e) motion.”). Granting such a motion is an
unusual measure limited to extraordinary circumstances. See Fields v. Vilsack, 841 F. Supp. 2d
282, 285 (D.D.C. 2012) (citing Liberty Prop. Trust v. Republic Props. Corp., 570 F.Supp.2d 95,
97 (D.D.C.2008)). Generally, motions for altering or amending judgment are granted only where
the party is able to demonstrate “an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” In re Navy
Chaplaincy, 850 F. Supp. 2d 86, 92 (D.D.C. 2012); see also Anyanwutaku v. Moore, 151 F.3d
1053, 1057-58 (D.C. Cir. 1998)). Such motions are “not simply an opportunity to reargue facts
and theories upon which a court has already ruled.” New York v. United States, 880 F. Supp. 37,
38 (D.D.C.1995).
3
B. Injunctive Relief Under Rule 65
Though not formally styled as a preliminary injunction motion, plaintiffs’ motion to alter
or amend judgment also seeks post-judgment injunctive relief under Fed. R. Civ. P. 65. (Mot. at
4). A preliminary injunction under Rule 65 is “an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). The factors a court must consider when determining
whether a preliminary injunction is appropriate are: (1) the movant’s showing of a substantial
likelihood of success on the merits, (2) irreparable harm to the movant, (3) whether there is
substantial harm to the non-movant, and (4) public interest. Davis v. Pension Benefit Guar.
Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). “The basis for injunctive relief in the federal courts
has always been irreparable harm and inadequacy of legal remedies.” Wisconsin Gas Co. v.
F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985) (citing Sampson v. Murray, 415 U.S. 61, 88, 94
(1974)).
II. PLAINTIFF’S MOTION TO ALTER OR AMEND THE JUDGMENT
Plaintiffs do not seek to amend or alter this Court’s judgment on the merits. Rather, they
only seek to modify the remedy. (See Pls.’ Reply Mem. in Further Support of Their Mot. to
Alter or Amend the J., Nov. 15, 2013 [ECF No. 46] (“Reply”), at 2.) The Court declines this
invitation to reconsider its earlier judgment for several reasons.
First, plaintiffs’ motion identifies no “intervening change of controlling law” or “new
evidence” to support the contention that they are entitled to additional injunctive relief during the
pendency of this case before HUD. See In re Navy Chaplaincy, 850 F. Supp. at 92. To the
contrary, plaintiffs merely restate the relief that they previously requested in their motion for
summary judgment. (See Proposed Order, July 16, 2013 [ECF No. 31-1] (“Defendant should
4
take any action necessary to protect Plaintiffs from displacement . . .”).) A motion Rule 59(e) is
not a chance for plaintiff to rehash arguments already considered by this Court. See New York v.
United States, 880 F. Supp. at 38 (D.D.C. 1995). The Court rejected those arguments for the
reasons discussed in its Memorandum Opinion and will not reconsider them now. See Bennett,
2013 WL 5424708, at *7.
Second, plaintiffs’ motion fails to demonstrate that a “manifest injustice” will result
absent post-judgment intervention by this Court. “[C]ourts have not precisely defined what
constitutes ‘manifest injustice.’” Piper, 312 F. Supp. 2d at 22. Yet, in cases where a plaintiff
“may be unfairly prejudiced,” the Court of Appeals has reasoned that “it is hard to fault a court
that finds nothing ‘manifest’ about any injustice that might result . . . .” Ciralsky v. C.I.A., 355
F.3d 661, 673 (D.C. Cir. 2004) (emphasis in original). In other words, no injustice is “manifest,”
where it is both speculative and unlikely to occur. In this case, plaintiffs offer no evidence that
they are facing foreclosure or that they are likely to face foreclosure during the pendency of this
litigation. (See Bene Decl. at ¶¶ 4-6) To the contrary, defendant continues to undertake actions
to maintain the status quo of the past two-and-a-half years and lenders have indicated that they
have no plans to seek foreclosure. (See id.) According to plaintiffs, “the only reason the
foreclosures have not proceeded to date is because of the actions HUD took in response to
Plaintiff’s [initial] Motion for Preliminary Injunction.” (Reply at 3.) HUD continues to take the
same actions. (See Bene Decl. at ¶¶ 4-6.) If the agency’s actions were sufficient then, those same
actions most certainly cannot constitute “manifest injustice” now.
5
Third, plaintiffs’ request for injunctive relief—insofar as this request is appropriate in a
post-judgment motion—also fails. 2 In order to demonstrate irreparable injury, it is well-
established that “the injury must be both certain and great; it must be actual and not theoretical . .
. the party seeking injunctive relief must show that [t]he injury complained of [is] of such
imminence that there is a clear and present need for equitable relief . . . .” Wisconsin Gas Co.,
758 F.2d at 674 (internal citations and quotation marks omitted). For the same reasons that
plaintiffs are unable to demonstrate a manifest injustice, plaintiffs are also unable to demonstrate
a sufficient “irreparable injury.” Not only is foreclosure not imminent in this case, it is unlikely
to occur.
Ultimately, this Court remains committed to following the guidance of the Court of
Appeals that it cited at length in its earlier Memorandum Opinion:
We do not hold, of course, that HUD is required to take [a] precise series of steps, nor do
we suggest that the district court should issue an injunction to that effect. Appellants
brought a complaint under the Administrative Procedure Act to set aside an unlawful
agency action, and in such circumstances, it is the prerogative of the agency to decide in
the first instance how best to provide relief. See N. Air Cargo v. U.S. Postal Serv., 674
F.3d 852, 861 (D.C. Cir. 2012) . . .
Perhaps HUD would provide the precise relief we have outlined, perhaps it would find
another alternative, or perhaps it would decide no such relief was appropriate. We
recognize that, even if the district court issues a declaratory judgment, appellants still
have no guaranty of relief. Though of course, if Bennett and Joseph prevailed on the
merits in the district court but were dissatisfied with HUD’s remedy, they would always
have the option to seek review on the ground that HUD’s actions were ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.’ 5 U.S.C.
§ 706(2)(A).
Bennett, 2013 WL 5424708 at *7 (Sept. 30, 2013) (citing Bennett, 703 F.3d at 589).
2
Defendant argues that “to obtain an injunction after summary judgment, when that injunction is not
directed at further proceedings in the district court, Plaintiffs would have to meet the standards required
for a permanent injunction.” (Opp. at 5.) However, because the Court’s analysis focuses on plaintiffs’
failure to demonstrate irreparable harm, a factor present in both the permanent injunction and preliminary
injunction standards, the Court need not consider which particular standard ought to apply at this juncture.
6
Under this reasoning, the only proper remedy was, and continues to be, a “remand to the
agency.” See also Fed. Power Comm’n v. Idaho Power Co., 344 U.S. 17, 20 (1952) (“[T]he
function of the reviewing court ends when an error of law is laid bare. At that point the matter
once more goes to the [Agency] for reconsideration.”); R.J. Reynolds Tobacco Co. v. Food &
Drug Admin., 696 F.3d 1205, 1222 (D.C. Cir. 2012) (dissolving permanent injunction entered by
the district court as improper under the APA); Cnty. of Los Angeles v. Shalala, 192 F.3d 1005,
1011 (D.C. Cir. 1999) (“Not only was it unnecessary for the court to retain jurisdiction to devise
a specific remedy for the Secretary to follow, but it was error to do so.”). The Court will not
alter or amend the remedy previously ordered.
CONCLUSION
Accordingly, and for the reasons stated above, plaintiffs’ motion to alter or amend the
judgment will be DENIED. A separate order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: December 4, 2013
7