UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

PLAINTIFFS’ MOTION TO ALTER OR
AMEND THE JUDGMENT UNDER F.R.C.P 59(E)

Plaintiffs respectfully move under Federal Rule of Civil Procedure 59(e) for
this Court to alter or amend its judgment on November 26, 2024, Docket No. 23
(“ECF 23 Opinion”) and Docket No. 24 (“ECF 24 Judgment”), that dismissed
Plaintiff’s complaint for lack of jurisdiction. Furthermore, Plaintiffs respectfully
request that any new and resultant opinion or judgment include an analysis of 42
U.S.C. § 6306(b)(4).

INTRODUCTION
For purposes of this motion, Plaintiffs accept as true this Court’s
determination that 42 U.S.C. § 6306(b)(1) creates a system of exclusive jurisdiction
in the appellate court. See ECF 23 Opinion 3. Congress can create exceptions to that
system; as this Court has recognized, 42 U.S.C. § 6306(c) does. Id. Plaintiffs
respectfully assert that 42 U.S.C. § 6306(b)(4) constitutes a similar exception to the
exclusive jurisdiction of the appellate court, and that this Court’s determination
that it lacks jurisdiction in this matter cannot be reconciled with that exception.

Plaintiffs acknowledge that reconsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly, Templet v. HydroChem Inc.,
367 F.3d 473, 479 (5th Cir. 2004), but this is a rare circumstance in which
reconsideration is appropriate. Rule 59(e) “motions cannot be used to raise
arguments which could, and should, have been made before the judgment issued.”
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (quoting Federal
Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)). Plaintiffs have
already raised the argument that 42 U.S.C. § 6306(b)(4) provided this court with
jurisdiction during briefing on the motion to dismiss. See Plaintiffs’ Response to
Defendant’s Motion to Dismiss, ECF 18, p. 7-10. Therefore, it is not excluded from
review under Rule 59(e).

Plaintiffs respectfully note that this Court’s opinion failed to address 42
U.S.C. § 6306(b)(4), Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), or any
other argument raised by Plaintiffs concerning this saving clause. ECF 23 Opinion.
2 Without an initial decision by this Court as to the meaning of 42 U.S.C. §
6306(b)(4), any appeal would likely result in a remand for this Court to focus on
matters that it did not previously address. For this reason, Plaintiffs respectfully
request that this Court amend its judgment so as to make its interpretation of 42 U.S.C. § 6306(b)(4) consistent with binding law.
ARGUMENT
At a very general level, the disagreement between the Plaintiffs and the
government is quite simple: the government has argued that a statute that
explicitly preserves remedies also prevents jurisdiction to issue such remedies, and
Plaintiffs disagree. The government’s position on this matter is problematic for
several reasons, including contrary legislative history and binding Supreme Court
precedent that this Court has equitable jurisdiction.
When a petition is filed under 42 U.S.C. § 6306(b)(1), the appellate “court
shall have jurisdiction to review the rule in accordance with chapter 7 of title 5 and
to grant appropriate relief as provided in such chapter.” § 6306(b)(2). The primary
relief or remedy provided in title 5 chapter 7 is to “hold unlawful and set aside agency action, findings, and conclusions.” 5 U.S.C. § 706(2). This is one of the
“remedies provided for in this subsection” under § 6306(b)(4).
The exclusive review provided by 42 U.S.C. § 6306(b)(1) ensures that the
remedies available under the Administrative Procedure Act can only be sought by
petition for review in an appellate court—not this court. But § 6306(b)(4) states that “other remedies provided by law” are not extinguished or foreclosed by this
provision for judicial review.
The language in 42 U.S.C. § 6306(b)(4) has been authoritatively interpreted
by the Supreme Court. In Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), the
Supreme Court held—in the course of interpreting the language in 21 U.S.C. §
371(f)(6)—that the language of 42 U.S.C. § 6306(b)(4) prevents an exclusive
statutory appellate review process from extinguishing declaratory and injunctive
relief in district court. Furthermore, the Supreme Court relied upon Congress’s
direct interpretation of that language as preserving “whatever rights exist to
initiate a historical proceeding in equity to enjoin the enforcement of the regulation,
and whatever rights exist to initiate a declaratory judgment proceeding.” H.R. Rep.
No. 2139, 75th Cong., 3d Sess., 11 (1938).

I. Congress and the Supreme Court Interpreted the Language in 42
U.S.C. § 6306(b)(4) To Allow District Court Review

The language of 42 U.S.C. § 6306(b)(4) (“The remedies provided for in this
subsection shall be in addition to, and not in substitution for, any other remedies
provided by law.”) is rooted in statutory precedent. It was originally crafted in the
Food, Drug, and Cosmetic Act of 1938, § 701(f)(6), Pub. Law 75-717, 52 Stat. 1040,
1056, codified at 21 U.S.C. § 371(f)(6). The text of that provision is: “The remedies
provided for in this subsection shall be in addition to and not in substitution for any
other remedies provided by law.” Id.
It is a “longstanding interpretive principle [that w]hen a statutory term is
‘obviously transplanted from another legal source,’ it ‘brings the old soil with it.’”

Taggart v. Lorenzen, 587 U.S. 554, 560 (2019) (quoting Hall v. Hall, 584 U.S. 59
(2018)); The almost identical language of 21 U.S.C. § 371(f)(6) and 42 U.S.C. §
6306(b)(4) demonstrates that Congress transplanted the language of the former to
the latter. When statutory language is transplanted in that way, “It is … well
established that [w]here Congress uses terms that have accumulated settled
meaning … a court must infer, unless the statute otherwise dictates, that Congress
meant to incorporate the established meaning of these terms.” Field v. Mans, 516
U.S. 59, 69 (1995) (alteration in original).
The Food, Drug, and Cosmetic Act of 1938 was enacted early in the
development of the modern administrative system, predating the Administrative
Procedure Act by eight years. It was one of the first statutes to establish original
jurisdiction for appellate courts to review an agency’s orders. It effectively served as a protype of the APA and empowered appellate courts “to affirm the order, or to set
it aside in whole or in part, temporarily or permanently.” 21 U.S.C. § 701(f)(3).
Given how new this process was, the most reasonable understanding of the portion
of the Act that is relevant here is that its goal was, in part, to preserve existing
judicial review remedies.
Congress described this language as a saving clause designed to protect the
traditional equitable jurisdiction of district courts:
There is also saved as a method to review a regulation placed in effect
by the Secretary whatever rights exist to initiate a historical
proceeding in equity to enjoin the enforcement of the regulation, and
whatever rights exist to initiate a declaratory judgment proceeding.

H.R. Rep. No. 2139, 75th Cong., 3d Sess., 11 (1938).

Prior to the Food, Drug, and Cosmetic Act § 701(f)(6), injunctions and
declaratory relief were the only means of halting wrongful agency action. Under
those remedies, the rule was lawful if it was not “arbitrary and capricious.” By
establishing this new judicial review provision, Congress sought to elevate factual
review to the modern “substantial evidence” test. The purpose of Congress in
enacting this special appellate judicial review provision was described in Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967):

The main issue in contention was whether these methods of review
were satisfactory. Compare the majority and minority reports on the
review provisions, H.R.Rep.No.2139, 75th Cong., 3d Sess. (1938), both
of which acknowledged that traditional judicial remedies were
available, but disagreed as to the need for additional procedures. The
provisions now embodied in a modified form in s 701(f) were supported
by those who feared the life-and-death power given by the Act to the
executive officials, a fear voiced by many members of Congress. The
supporters of the special-review section sought to include it in the Act
primarily as a method of reviewing agency factual determinations. For
example, it was argued that the level of tolerance for poisonous sprays
on apple crops, which the Secretary of Agriculture had recently set,
was a factual matter, not reviewable in equity in the absence of a
special statutory review procedure. Some congressmen urged that
challenge to this type of determination should be in the form of a de
novo hearing in a district court, but the Act as it was finally passed
compromised the matter by allowing an appeal on a record with a
‘substantial evidence’ test, affording a considerably more generous
judicial review than the ‘arbitrary and capricious’ test available in the
traditional injunctive suit.
387 U.S. at 143.
A second purpose identified by the Supreme Court in Abbott “was to provide
broader venue to litigants challenging such technical agency determinations.” Id. at

The Court concluded that “a study of the legislative history shows rather conclusively that the specific review provisions were designed to give an additional
remedy and not to cut down more traditional channels of review.” Id. at 142. The
saving clause preserved existing judicial remedies in district courts while also
adding the new appellate review process.
Congress enacted the EPCA judicial review provisions eight years after
Abbott Laboratories v. Gardner (1967). Congress was fully aware of the Supreme
Court’s interpretation of the language in § 6306(b)(4) as preserving district court
jurisdiction for declaratory and injunctive relief, even where exclusive appellate
judicial review was otherwise provided. By adopting the same language in EPCA at
42 U.S.C. § 6306(b)(4), Congress affirmed its intent to incorporate that
interpretation.

II. District Court Jurisdiction for Equitable Remedies Under the Saving
Clause Language Has Been Recognized by Many Courts

Plaintiff’s interpretation of the language of 42 U.S.C. § 6306(b)(4) finds
support in case law from courts nationwide. Consider Gen. Motors Corp. v. Volpe,
321 F. Supp. 1112, 1124 (D. Del. 1970) along with the Third Circuit’s appellate
review in 457 F.2d 922 (3d Cir. 1972): in Volpe, GM sued the NHSB seeking
declaratory and injunctive relief from the NHSB’s regulations under the National
Traffic and Motor Vehicle Safety Act of 1966. “The defendants contend that the
enforcement action provided for in 15 U.S.C. § 1399 is exclusive and that such an
action as the present one is barred by the meaning of the Vehicle Safety Act.” Volpe,
321 F. Supp. at 1123.

The district court in Volpe specifically cited the savings clause containing the
language of 42 U.S.C. § 6306(b)(4) and Abbott Laboratories v. Gardner. Id. at 1124;
National Traffic and Motor Vehicle Safety Act of 1966, Sec. 105(a)(6), P.L 89-563, 80
stat.721. On the basis of the saving clause, the district court found it had
jurisdiction, stating, “In light of the discussion of this same language in Abbott,
there is no good reason to discuss this point further.” Id.
On appeal, the Third Circuit affirmed, stating “we think the court had
jurisdiction and the issue was whether it chose to exercise jurisdiction under either
Act.” Gen. Motors Corp. v. Volpe, 457 F.2d 922 (3d Cir. 1972). “The court thus
realized that it had ‘bare’ jurisdiction to entertain GM’s request for declaratory
relief.” Id. at 923.

Volpe is not an isolated example. In Am. Home Prod. Corp. v. Richardson,
328 F. Supp. 612 (D. Del. 1971), the court cited a statutory provision with the
language at issue in this case and held:
Since the United States Supreme Court’s opinion in Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967), it is clear that the
existence of the ‘special statutory review proceeding’ provided in
section 701(f) does not automatically foreclose this Court, in an
appropriate case, from entertaining actions for pre-enforcement
judicial review under the Declaratory Judgment Act.

Id. at 616.

Likewise, in Home Prod. Corp. v. Finch (D. Del. 1969), the district court held:
The subsection of the Act (21 U.S.C. § 371(f)), which authorizes judicial
review in an appropriate Court of Appeals . . . is not exclusive in that the
subsection contains a ‘savings clause’ which also provides:

‘The remedies provided for in this subsection shall be in addition to
and not in substitution for any other remedies provided by law’ (21
U.S.C. § 371(f)(6)).
The ‘savings clause’ is to be taken at its face value, and to be read in harmony
with the policy favoring judicial review in proper cases. Abbott Laboratories
v. Gardner, supra at 144, 87 S.Ct. 1507. 303 F. Supp. 448, 452.
In Upjohn Co. v. Finch, 303 F. Supp. 241 (W.D. Mich. 1969), the district court
found it had jurisdiction based on the saving clause and referred to the legislative
history in H.R. Rep. No. 2139, 75th Cong., 3d Sess., 11 (1938), and Abbott
Laboratories. The court even block-quoted Abbott extensively to conclude that the
district court retained jurisdiction over equitable and declaratory remedies. 303 F.
Supp. at 248.

III. The Government’s Interpretation of 42 U.S.C. § 6306(b)(4) Renders It
Mere Surplusage.

The government has advanced an interpretation of the saving clause in 42
U.S.C. § 6306(b)(4) that cannot be reconciled with Abbott Laboratories or with the
original meaning that is evident from the legislative history.
The government claims that 42 U.S.C. § 6306(b)(4), “merely provides that the
remedies available under Section 6306(b) are supplemental and not exclusive.”
Defendants’ Reply Brief to its Motion to Dismiss, ECF 19, at 6 PageID 433. That is
obviously true. But the government then draws an indefensible inference: it asserts
that 42 U.S.C. § 6306(b)(4) does not “confer a cause of action” and that this Court
therefore lacks jurisdiction. Id. That argument ignores the distinction between legal
and equitable jurisdiction. Having a cause of action was how a plaintiff would get into a court of law, but to get into equity, a plaintiff needed something quite different. A suitor in equity needed a grievance, a good story that would motivate
the court.

The story needed to connect up with some recurring pattern
of equitable intervention, and these patterns were called “heads of
equitable jurisdiction.” [Footnote 2: See, e.g., Eugene A. Jones, Manual of Equity Pleading and Practice 31 (1916) (“[T]he plaintiff’s narrative of his grievance … must state a case remediable under some head of equity jurisdiction ….”)] A plaintiff who didn’t fit within one of the heads of equitable jurisdiction would be denied relief “for want of
[e]quity”—not for failure to state a cause of action. [Footnote 3:
See 1 Joseph Story, Commentaries on Equity Pleadings, and the
Incidents Thereof, According to the Practice of the Courts of Equity of
England and America § 472, at 372 (2d ed., Boston, Charles C. Little &
James Brown 1840) (1836) (“[W]henever there is no sufficient ground shown in the Bill for the interference of a Court of Equity, the defendant may demur to the Bill for want of Equity to sustain the jurisdiction.”).] Samuel L. Bray & Paul B. Miller, Getting into Equity, 97 Notre Dame L. Rev. 1763, 1764 (2022). As Plaintiffs noted in their response brief:

The cause of action under equity is not established by statute. “After
Congress created federal question jurisdiction in 1875, federal courts
began entertaining bills of equity that sought to enjoin allegedly
unlawful administrative action. They did so on the theory that federal
courts needed only a grant of jurisdiction, not a statutory cause of
action.” Thomas W. Merrill, Article III, Agency Adjudication, and the
Origins of the Appellate Review Model of Administrative Law, 111
Colum. L. Rev. 939, 949 (2011)

Plaintiffs’ response to Defendant’s Motion to Dismiss, ECF 18, p. 4, PageID 403.
In contrast to the kind of cause of action that is based in law, “The ability to
sue to enjoin unconstitutional actions by state and federal officers is the creation of
courts of equity, and reflects a long history of judicial review of illegal executive
action, tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.
320, 327 (2015) (emphasis added) (citing Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956)). “It is a judge-made
remedy.” Id.
After the government claimed that a statutory cause of action was absent, it
then added that “Abbott Laboratories says nothing to the contrary” about its
position. Defendants’ Reply Brief in Support of Defendants’ Motion to Dismiss, ECF
19, p. 8, PageID 433. That is simply wrong. Abbott Laboratories expressly states
that the language in 42 U.S.C. § 6306(b)(4) creates “a general grant of a right to
judicial review,” and it overturns the Circuit Court decision that found that the
district court lacked equitable jurisdiction to declare the agency action unlawful or
enjoin enforcement. 387 U.S. at 145.

In Abbott Laboratories, the Supreme Court noted that the language of 42
U.S.C. § 6306(b)(4) “would foreclose the Government’s main argument in this case.”
387 U.S. at 144. In Abbott, the government’s position was that an exclusive review
provision precluded any alternative review in equity. The government’s argument
failed in the most extensive and final way possible; namely, the Supreme Court
determined that the government’s argument was wrong. It failed then and it must
fail now, due to the text of § 6306(b)(4) and the holding of Abbott Laboratories.
In Abbott Laboratories, the Supreme Court recognized that “[t]he saving
clause itself contains no limitations.” Id. at 145. Indeed, “it is difficult to think of a
more appropriate place to put a general saving clause than where Congress placed
it—at the conclusion of the section setting out a special procedure for use in certain specified instances.” Id.

Furthermore, the government’s position creates an entirely separate problem:
“the Government’s reading would result in an anomaly.” Id. The special appellate
judicial review “procedure was included in the Act in order to deal with the problem
of technical determinations for which the normal equity power was deemed
insufficient.” Id. “There would seem little reason for Congress to have enacted [the
exclusive judicial review], and at the same time to have included a clause aimed
only at preserving for such determinations the other types of review whose
supposed inadequacy was the very reason for the special-review provisions.” Id.

The Supreme Court held that the government’s argument leads to surplusage: Under the Government’s view, indeed, it is difficult to ascertain when
the saving clause would even come into play: when the special
provisions apply, presumably they must be used and a court would not
grant injunctive or declaratory judgment relief unless the appropriate
administrative procedure is exhausted. When the special procedure
does not apply, the Government deems the saving clause likewise
inapplicable.
Id.
Similarly, the government’s position in the case at hand would create an
equally absurd result: it claims § 6306 both preserves other remedies that exist at
law such as declaratory relief and simultaneously deprives courts of the jurisdiction
necessary to issue those remedies. Why would Congress enact a specific provision
designed to allow remedies while simultaneously depriving courts of the jurisdiction
to issue them? This is just the same problem that the Supreme Court identified in
Abbott Laboratories, and it is fatal to the government’s position here as well. The government’s reading would render § 6306(b)(4) surplusage, having no actual legal effect, and thus violating the rule against surplusage. Corley v. United States, 556
U.S. 303, 314 (2009) (“[O]ne of the most basic interpretive canons [is] that [a]
statute should be construed so that effect is given to all its provisions, so that no
part will be inoperative or superfluous, void or insignificant.”

It was Congress that interpreted the language in § 6306(b)(4) to preserve
“whatever rights exist to initiate a historical proceeding in equity to enjoin the
enforcement of the regulation, and whatever rights exist to initiate a declaratory
judgment proceeding.” H.R. Rep. No. 2139, 75th Cong., 3d Sess., 11 (1938). It is
impossible to reconcile the government’s argument about the meaning of
§ 6306(b)(4) with the relevant legislative history.

The reason why these remedies must be available is that they provide relief
that cannot be achieved through § 6306(b)(1)—which itself is limited by § 6306(b)(2)
to blocking the specific rule at issue. The exclusive review provision was designed to
review the actions the agency was authorized to issue, unlike the ultra vires agency
action here. Furthermore, the APA remedies do nothing to prevent future unlawful
behavior by the agency. That is crucial for the case at hand, especially because (as
the Fifth Circuit has already explained) the agency here—the Department of
Energy—is entirely without the statutory authority that it attempts to exercise.
Louisiana v. Dep’t of Energy, 90 F.4th 461, 470 (5th Cir. 2024). Nor do the APA
remedies correct the past unlawful actions by the agency that continue to harm the Plaintiffs today. Congress intended the saving clause to ensure meaningful judicial
review where the exclusive review provision is inadequate.

CONCLUSION

Plaintiffs respectfully request that this Court amend its opinion, ECF 23
Opinion, and judgment, ECF 24 Judgment, dismissing Plaintiff’s complaint for lack
of jurisdiction so that it can interpret the meaning of 42 U.S.C. § 6306(b)(4). This
Court is bound by the Supreme Court’s Abbott Laboratories opinion, and it should
view 42 U.S.C. § 6306(b)(4) in the light of that decision: namely, it should
understand its jurisdiction as including the kind of equitable remedy that Plaintiffs
request. Plaintiffs respectfully ask for an amended opinion that is consistent with
the interpretation of both Congress and the Supreme Court.