UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL WILDLIFE FEDERATION, INC., et al., Plaintiffs, v. Civil Action No. 17-772 (JDB) UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

MEMORANDUM OPINION

Before the Court is [47] plaintiffs’ motion for reconsideration of [45] the Court’s March

29, 2018 order transferring this case to the U.S. District Court for the Northern District of Georgia

pursuant to

(a). Plaintiffs’ motion asserts, among other things, that the Court

erred by first ordering the transfer of a related case to that district, see Alabama v. U.S. Army

Corps of Eng’rs, No. 17-cv-607,

at *10 (D.D.C. Mar. 29, 2018), and then

ordering the transfer of this case for largely the same reasons. See Pls.’ Mot. for Recons. of Mar.

29, 2018 Order [ECF No. 47] (“Pls.’ Recons. Mot.”) at 2 (arguing that the Court “did not address

the significant differences between . . . the two cases” and thus “neglect[ed] to afford Plaintiffs full

consideration of their position”). In opposing plaintiffs’ motion, defendants argue only that the

Court lacks jurisdiction because this case has already been electronically transferred out of this

district. See Def.–Intervenor the State of Ga.’s Statement in Opp’n to Mot. for Recons. [ECF No.

48] at 1–2; Fed. Defs.’ Resp. in Opp’n to Pls.’ Mot. for Recons. [ECF No. 49] at 3–5; Water Supply

Providers’ Jurisdictional Resp. to Pls.’ Mot. for Recons. [ECF No. 50] at 1–2. For the reasons that

follow, the Court agrees with defendants that it lacks authority to reconsider its March 29, 2018

transfer order. The motion for reconsideration will therefore be denied. BACKGROUND

This litigation concerns a March 2017 update to the plan followed by the U.S. Army Corps

of Engineers (the “Corps”) for managing five dams in the Apalachicola–Chattahoochee–Flint

River Basin (the “ACF River Basin”), a region that spans much of Georgia and parts of eastern

Alabama and the Florida panhandle. See Pls.’ Compl. [ECF No. 1] ¶¶ 23, 72, 75. Shortly after

the update took effect, the State of Alabama filed a lawsuit challenging the Corps’s decision to

reallocate water from Lake Lanier, a reservoir in northern Georgia, to accommodate the needs of

nearby metropolitan Atlanta. See Alabama,

, at *4. Plaintiffs thereafter filed

this action challenging the updated plan on various grounds, arguing that it would lead to “the

collapse of the Apalachicola ecosystem in Florida” and cause “significant harm to the

Chattahoochee River in Georgia and Alabama.” Pls.’ Compl ¶ 1; see Pls.’ Consolidated Resp. in

Opp’n to Def.–Intervenors’ Mot. to Transfer Venue [ECF No. 42] at 3.

The State of Georgia and a group of Georgia water supply providers intervened as

defendants in both actions and moved to transfer the cases to the Northern District of Georgia,

where Lake Lanier is located. See Alabama,

, at *4; March 29, 2018 Order

[ECF No. 45] at 4. The Court granted both motions on March 29, 2018. Twelve days later, the

cases were electronically transferred to the Northern District of Georgia, where they are currently

pending. See Alabama v. U.S. Army Corps of Eng’rs, No. 18-cv-1529 (N.D. Ga. filed Apr. 10,

2018); Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, No. 18-cv-1530 (N.D. Ga. filed Apr.

10, 2018). The next day, plaintiffs filed the instant motion seeking reconsideration of the Court’s

transfer order. See Pls.’ Recons. Mot. at 1. The motion is now fully briefed and ripe for decision.

2 DISCUSSION

In this circuit, it is settled that the “physical transfer of the original papers in a case to a

permissible transferee forum deprives the transferor circuit of jurisdiction to review the transfer.”

Starnes v. McGuire,

(D.C. Cir. 1974) (en banc); see also In re Sosa,

(D.C. Cir. 1983) (per curiam) (explaining that “[a] new proceeding seeking retransfer

in the [transferee forum] . . . is ‘the appropriate course of action’” for seeking post-transfer review

(citation omitted)). Although this rule does not apply where there is “a substantial issue whether

the district court had ‘power to order the transfer,’” In re Briscoe,

(D.C. Cir.

1992) (per curiam) (citation omitted)—which may be the case, for example, where “the transfer is

to a forum that is not permitted under Section 1404(a),” Starnes,

n.6—plaintiffs

do not contend that this exception applies here. Rather, they claim that they were deprived of a

“fair opportunity to seek review” of the Court’s transfer order because the case was transferred

twelve days after the order was entered. Pls.’ Consolidated Reply in Supp. of Mot. for Recons.

[ECF No. 51] (“Pls.’ Reply”) at 3 (quoting Starnes,

). According to plaintiffs, the

Court should have waited either twenty days (under Starnes) or fourteen days (in accordance with

common practice in this district) to give them time to prepare and file their reconsideration motion.

As an initial matter, the Court notes that the D.C. Circuit’s decision in Starnes dealt

specifically with the transfer of prisoner suits brought against federal officials located in

Washington, D.C. See 512 F.2d at 929–35 (setting out the “factors that generally will be relevant

to a decision whether to transfer a particular prisoner petition under

(a)” and “the

procedures to be followed both in making such a determination in the first instance and in assuring

an opportunity for appellate review”); see also In re Asemani,

(D.C. Cir. 2006)

(“The Starnes rule was adopted in order to ‘allow the transferring judge to consider any late-

3 arriving briefs in opposition to the transfer which may have been delayed by inefficiencies in the

prison mail services.’” (citation and alterations omitted)). After noting that the “practice” in this

district was to wait ten days before carrying out a transfer order, the Starnes court concluded that

“special circumstances surrounding pro se prisoner petitions filed from afar suggest a somewhat

longer period of time,” and that the ordinary ten-day delay therefore “might well be increased to

20 days” in such cases. Id. at 935. This reasoning suggests that Starnes’s 20-day rule applies only

to cases involving prisoners, where “special circumstances” favoring delay are present.

Indeed, the only case cited by plaintiffs in which a court in this district expressly relied on

Starnes’s 20-day rule was a suit brought by a pretrial detainee in Oklahoma against federal officials

in D.C. See Nichols v. U.S. Bureau of Prisons,

, 10 n.4 (D.D.C. 1995); see also In

re Jones, No. 02-5153,

, at *1 (D.C. Cir. Aug. 14, 2002) (per curiam) (stating

that delay under Starnes was proper in a suit brought by a Colorado prisoner against federal

officials in D.C.); In re Briscoe,

(suggesting that under Starnes, the transfer of a

criminal case pursuant to Federal Rule of Criminal Procedure 21(b) should have been delayed for

at least 20 days). The remaining cases suggest that in civil cases not involving parties incarcerated

in other districts, the usual practice is to delay somewhere between ten and fifteen days. See Pls.’

Reply at 4–6. 1

1 See, e.g., Dec. 1, 2014 Min. Entry, Defs. of Wildlife v. Jewell,

(D.D.C. 2014) (No. 14- cv-1025) (transferring case 14 days after entry of transfer order); May 14, 2013 Min. Entry, W. Watersheds Project v. Pool,

(D.D.C. 2013) (No. 12-cv-1113) (transferring case 14 days after entry of order); Oct. 11, 2012 Min. Entry, Pres. Soc’y of Charleston v. U.S. Army Corps of Eng’rs,

(D.D.C. 2012) (No. 12-cv-1089) (transferring case 14 days after entry of order); Nov. 30, 2012 Min. Entry, Pac. Mar. Ass’n v. NLRB,

(D.D.C. 2012) (No. 12-cv-1477) (transferring case 10 days after entry of order); May 8, 2008 Min. Entry, FTC v. Cephalon, Inc.,

(D.D.C. 2008) (No. 08-cv-244) (transferring case 10 days after entry of order); Lopez Perez v. Hufstedler,

(D.D.C. 1980) (directing that transfer be carried out 15 days after entry of order). But see Jul. 28, 2006 Min. Entry, Nat’l Wildlife Fed’n v. Harvey,

(D.D.C. 2006) (No. 05-cv-1671) (transferring case 43 days after entry of order); Dec. 18, 2003 Min. Entry, Sierra Club v. Flowers,

(D.D.C. 2003) (No. 02-cv-1652) (transferring case over four months after entry of order); Nov. 13, 2002 Min. Entry, Airport Working Grp. of Orange Cty., Inc. v. U.S. Dep’t of Def.,

(D.D.C. 2002) (No. 02-cv-1220) (transferring case 22 days after entry of order). 4 Moreover, even if Starnes’s 20-day rule were applicable here, the D.C. Circuit has

expressly rejected the notion that a violation of that rule is itself grounds for post-transfer review.

See In re Briscoe, 976 F.2d at 1426–27 (stating that jurisdiction is “ordinarily” lacking even if

Starnes’s 20-day rule is not observed). As already noted, this rule is subject to only “one

exception,” In re Asemani,

(citation omitted), which applies where there is a

“substantial issue” as to the transferor court’s authority to effect the transfer,

and plaintiffs do

not contend that this exception applies here. And although the Court could “request, informally,

that the [transferee court] return the file,” In re Briscoe,

, there is no reason to do

so here. Plaintiffs’ motion presents no “substantial claim regarding the legality of the order,”

nor do its “merits . . . warrant such extraordinary action,” 2 In re Sosa,

n.1. This

is particularly so here, where the informal return of the case “would needlessly delay [an] already

protracted proceeding.” In re Briscoe,

.

Plaintiffs urge the Court to disregard this D.C. Circuit precedent in light of the Supreme

Court’s recent decision in Hamer v. Neighborhood Housing Services of Chicago,

(2017), which warned lower courts to exercise caution when reading “jurisdictional” limitations

2 As already noted, plaintiffs’ chief ground for seeking reconsideration is that the Court purportedly paid insufficient attention to aspects of this case that distinguish it from the Alabama case. See Pls.’ Recons. Mot. at 5–8. For example, plaintiffs assert that unlike in Alabama, where the specific issue was the Corps’s decision to reallocate water from Lake Lanier, plaintiffs here are concerned about the impact that the entire updated water management plan—which plaintiffs allege was created in violation of various environmental statutes—will have on ecosystems in Florida. See id. at 6 (“An entire economy, culture and way of life is at stake for Floridians in the Apalachicola ecosystem.”); see also Pls.’ Compl. at 55 (seeking, among other things, an “injunction against implementation of the updated [plan] until the Corps properly evaluates the impact[] of its actions on the Apalachicola ecosystem”). But the fact remains that both lawsuits challenge the same action by the same agency: the Corps’s March 2017 update to its water management plan for the ACF River Basin. As a result, the bulk of the factors that supported the Court’s decision in Alabama also apply here. See, e.g., Alabama,

, at *5 (explaining that the case most directly affects “the residents of Georgia . . . [,] Alabama[,] and other parts of the ACF Basin” and that the challenged decision “was made by personnel from the Corps’ offices in Atlanta and Mobile”). To the extent that plaintiffs’ motion identifies other differences, see, e.g., Pls.’ Recons. Mot. at 7 (arguing that unlike the State of Alabama, plaintiffs here did not seek to circumvent unfavorable Eleventh Circuit precedent), those differences are insufficient to justify the “extraordinary” measure of post-transfer review, In re Sosa,

n.1. 5 into statutes. See Pls.’ Reply at 7–9 (quoting Hamer,

). But this Court is not

free to ignore binding circuit precedent because of a possible inconsistency with an intervening

decision of the Supreme Court. See Brookens v. Acosta,

(D.D.C. 2018)

(explaining that “district judges, like panels of the D.C. Circuit, are obligated to follow controlling

circuit precedent until either the Circuit, sitting en banc, or the Supreme Court, overrules it”

(citations and alterations omitted)). Nor does the fact that, on one occasion, a court in this district

denied a motion for reconsideration of a transfer order on the merits instead of on jurisdictional

grounds—in apparent contradiction of Starnes and In re Sosa—convince the Court that it should

do the same here. See Martin–Trigona v. Meister, No. 87-cv-0452,

, at *1–2

(D.D.C. Apr. 7, 1987). The plaintiffs’ remaining arguments are likewise unavailing. See Pls.’

Recons. Mot. at 9–10 (arguing, among other things, that defendants “implicitly” acknowledged

the Court’s authority to adjudicate the plaintiffs’ reconsideration motion by seeking the Court’s

leave to respond to the merits of the motion should it find that it has jurisdiction).

The Court agrees that plaintiffs did not inappropriately “wait” to prepare and file their

reconsideration motion—which, after all, spans seventeen pages and raises numerous grounds for

reconsideration. Pls.’ Reply at 6. But plaintiffs did assume that transfer would be delayed for

fourteen days, see

and they have not pointed to any case, statute, or rule to justify that

assumption. To the contrary, plaintiffs’ own citations show that the practice here is not uniform,

and, in the face of that lack of uniformity, plaintiffs neither moved to stay the implementation of

the Court’s transfer order nor otherwise notified the Court of their intention to seek

reconsideration. Thus, because plaintiffs have failed to demonstrate either that an exception to the

bar on post-transfer review applies or that extraordinary circumstances warrant an informal request

6 for the return of their case, their motion for reconsideration will be denied. A separate order has

been issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: June 8, 2018

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