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,

(D.D.C. 2011). The

Court of Appeals reversed. See Bennett v. Donovan,

(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,

(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,

(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,

(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,

(D.D.C. 2012) (citing Liberty Prop. Trust v. Republic Props. Corp.,

(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,

(D.D.C. 2012); see also Anyanwutaku v. Moore,

(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,

,

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.,

(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.,

(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.,

, 674 (D.C. Cir. 1985) (citing Sampson v. Murray,

(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,

.

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,

. 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.,

(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.,

(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.’

(2)(A).

Bennett,

(Sept. 30, 2013) (citing Bennett,

).

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.,

(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.,

(D.C. Cir. 2012) (dissolving permanent injunction entered by

the district court as improper under the APA); Cnty. of Los Angeles v. Shalala,

,

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

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