UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COMMISSIONED OFFICERS ASSOCIATION OF THE UNITED STATES PUBLIC HEALTH SERVICE, Plaintiff, v. Civil Action No. 21-853 (JDB)

LONNIE G. BUNCH, III, Secretary of the Smithsonian Institution, et al., Defendants.

MEMORANDUM OPINION & ORDER

The Commissioned Officers Association of the United States Public Health Service

(“COAUSPHS” or “the Association”) is suing various government defendants in order to

challenge the design of the National Native American Veterans’ Memorial. On March 30, 2022,

this Court granted defendants’ motion to dismiss the complaint for lack of subject-matter

jurisdiction, concluding that the Association lacks standing to sue. See Order, Mar. 30, 2022 [ECF

No. 15]; Mem. Op., Mar. 30, 2022 [ECF No. 16] (“Mar. 30 Mem. Op.”). The Association now

moves for reconsideration pursuant to Federal Rule of Civil Procedure 59(e), arguing that the Court

improperly considered an argument raised by the government for the first time in its reply brief

and that two newly-submitted affidavits demonstrate that the Association does in fact have

standing to sue on behalf of its members. For the reasons explained below, the Court rejects both

of these arguments and will deny the Association’s motion for reconsideration.

Background

This Court set out the facts underlying the present suit in its initial decision, see Mar. 30

Mem. Op. at 1–4, and will assume that the reader is familiar with that opinion. Briefly, the

1 Association is a member-based organization that advocates for the interests of officers of the

United States Public Health Service Commissioned Corps (“USPHS Corps”) and, to a lesser

extent, the officers of the National Oceanic and Atmospheric Administration Commissioned

Officer Corps (“NOAA Corps”). See Compl. [ECF No. 1] ¶¶ 7–8. The USPHS Corps and the

NOAA Corps are both “uniformed services” of the United States alongside the six (more

recognizable) branches of the “armed forces,” see

(a)(4)–(5), and members of the

USPHS Corps and NOAA Corps are considered “veterans” for many purposes, see Compl. ¶¶ 36,

61;

(d). But in 2018, the National Museum of the American Indian (“NMAI”)

unveiled a design for the National Native American Veterans’ Memorial (“the Memorial”) that

recognized veterans of only the armed forces, omitting any mention of the USPHS Corps and

NOAA Corps. Mar. 30 Mem. Op. at 2–3. The Association lobbied the NMAI to change course

and include the uniformed services on the Memorial, Pl.’s Mem. of P. & A. in Opp’n to Defs.’

Mot. to Dismiss [ECF No. 11] at 15 (briefly describing the “considerable amounts of time and

money” spent lobbying NMAI), but these efforts were unsuccessful—the Memorial is now

finished and open to the public, recognizing only veterans of the armed forces, Compl. ¶¶ 43–46;

Compl. Encl. 4 [ECF No. 1] (photograph of the Memorial). In July 2021, the Association brought

this lawsuit, alleging that the omission of the USPHS Corps and NOAA Corps violates the Fifth

Amendment’s Due Process Clause by devaluing Corps members’ service and veteran status. See

Compl. ¶¶ 51–68.

On March 30, 2022, the Court dismissed plaintiff’s complaint for lack of subject-matter

jurisdiction, holding that the Association lacked standing to sue. First, the Court concluded that

the Association failed to establish “representational standing,” or standing to sue on behalf of its

members. See Mar. 30 Mem. Op. at 6–9. In order to have representational standing, an

2 organizational plaintiff must show, among other things, that “at least one of its members would

have standing to sue in [his or her] own right.” Food & Water Watch v. FERC,

(D.C. Cir. 2022) (citation omitted). But the Association failed to identify any such members or

provide evidence, such as sworn affidavits, supporting the unnamed members’ alleged injuries.

See Mar. 30 Mem. Op. at 8–9 (“[T]he Association submitted no affidavits, made only general

allegations of member injury in its opposition brief, and failed to specifically identify any

individual member suffering harm . . . . [T]he Association simply has not made the requisite

showing that at least one of its members would have standing to bring this suit.” (internal citation

omitted)). The Court then also held that the Association lacked standing to sue in its own right, as

it had failed to demonstrate that defendants’ conduct had caused a “concrete and demonstrable

injury to [its] activities” rather than merely “a setback to the organization’s abstract social

interests.” Mar. 30 Mem. Op. at 12 (quoting Havens Realty Corp. v. Coleman,

(1982)); see generally

at 9–14.

Nine days after the Court issued its decision, the Association filed the present motion for

reconsideration under Federal Rule of Civil Procedure 59(e). See Pl.’s Mem. of P. & A. in Supp.

of Mot. for Recons. of Ct.’s J. Dismissing Compl. [ECF No. 17] (“Pl.’s Mot.”). The government

timely filed a brief in opposition, see Mem. of P. & A. in Opp’n to Pl.’s Mot. [ECF No. 19] (“Gov’t

Opp’n”), and the Association filed its reply brief on May 20, 2022, see Pl.’s Mem. of P. & A. in

Reply to Gov’t Opp’n [ECF No. 20] (“Pl.’s Reply”). The motion is now fully briefed and ripe for

decision.

3 Legal Standard

Under Federal Rule of Civil Procedure 59(e), a party may file a motion to alter or amend a

judgment within 28 days after entry of judgment. Fed. R. Civ. P. 59(e). 1 Rule 59(e) thus “provides

a limited exception to the rule that judgments are to remain final,” and a court “may grant a motion

to amend or alter a judgment under three circumstances only: (1) if there is an intervening change

of controlling law; (2) if new evidence becomes available; or (3) if the judgment should be

amended in order to correct a clear error or prevent manifest injustice.” Leidos, Inc. v. Hellenic

Republic,

(D.C. Cir. 2018) (internal quotation marks and citation omitted).

“Rule 59(e) motions on the basis of new evidence are restricted to evidence that is ‘newly

discovered or previously unavailable despite the exercise of due diligence.’” Am. Bar Ass’n v.

U.S. Dep’t of Educ.,

(D.D.C. 2019) (quoting Johnson v. District of

Columbia,

(D.D.C. 2017)). “[T]he reconsideration and amendment of a

previous order is an extraordinary measure,” Johnson,

(quoting Fresh Kist

Produce, LLC v. Choi Corp.,

(D.D.C. 2003)), and “granting a Rule 59(e)

motion is generally disfavored in the absence of ‘extraordinary circumstances,’” Metro. Life Ins.

Co. v. Blyther,

(D.D.C. 2013) (quoting Niedermeier v. Off. of Baucus,

(D.D.C. 2001)).

Analysis

In its motion, the Association seeks reconsideration based on the need to “correct a clear

error or prevent manifest injustice,” Leidos,

, and on the availability of new

evidence. See Pl.’s Mot. at 1–2. First, the Association contends that it was “clear legal error under

1 Plaintiff ’s contrary understanding that a Rule 59(e) motion must be filed within 10 days, see Pl.’s Mot. at 2, is based on an outdated version of Rule 59(e), see Fed. R. Civ. P. 59 advisory committee’s note to 2009 amendment (noting amendment of Rule extending the filing deadline from 10 days to 28 days).

4 the controlling precedent of this circuit” for the Court to dismiss the complaint on a ground not

raised by the government until its reply brief: namely, that plaintiff failed to submit any evidence

supporting its members’ standing to sue. Pl.’s Mot. at 2–3; see also Pl.’s Reply at 2–3. The

Association also asks the Court to consider two affidavits from Native American members of the

NOAA Corps and USPHS Corps as newly-available evidence, asserting that the affidavits

demonstrate the Association’s representational standing. 2 See Pl.’s Mot. at 4–7; Exs. 1 & 2 to

Pl.’s Mot. [ECF No. 17-1] (the new affidavits). The Court will consider—and reject—these two

arguments in turn.

I. The Court Did Not Err by Relying on Plaintiff’s Failure to Submit Evidence in Support of Its Standing The Association first contends that the Court erred by rejecting the Association’s claim of

representational standing on the ground that it had not submitted affidavits or other evidence

supporting its members’ standing. Pl.’s Mot. at 2–3; see Mar. 30 Mem. Op. at 7–8. Because

defendants did not specifically note the absence of these affidavits until their reply brief, plaintiff

explains, the Court was not permitted to consider that argument. Pl.’s Mot. at 3 (“The Court’s

ruling on representational standing was, in effect, based on an argument raised in ambush on the

Plaintiff . . . . This was a clear legal error . . . .”). In other words, plaintiff argues that the

government forfeited this affidavit argument and that the Court was thereby precluded from

dismissing the complaint on that ground.

2 It does not appear that the Association asks the Court to reconsider its holding that the Association lacks standing to sue in its own right.

5 Plaintiff is not correct. Even assuming that the relevant argument was raised for the first

time on reply, 3 the Court would still have had not only the power but the obligation to consider it.

“Standing can be raised at any point in a case proceeding and, as a jurisdictional matter, may be

raised, sua sponte, by the court. And when there is doubt about a party’s constitutional standing,

the court must resolve the doubt, sua sponte if need be.” Bauer v. Marmara,

(D.C. Cir. 2014) (internal quotation marks, alterations, and citations omitted); accord, e.g.,

DaimlerChrysler Corp. v. Cuno,

(2006) (dismissing suit for lack of standing

even though issue was not addressed by court below, and noting that courts “have an obligation to

assure ourselves of litigants’ standing under Article III” (internal quotation marks and citation

omitted)); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”). Plaintiff’s forfeiture argument simply cannot be

squared with the jurisdictional nature of standing—that a Court may question a plaintiff’s standing

sua sponte necessarily implies that a defendant cannot forfeit an argument with respect to standing

by failing to raise it in a timely manner. Indeed, the very case plaintiff cites for the proposition

that arguments raised for the first time on reply may not be considered, Herbert v. National

Academy of Sciences,

(D.C. Cir. 1992), recognizes that one of the “circumstances

in which a court may consider, or even raise sua sponte, arguments ignored or left undeveloped by

counsel in the first round of briefing” is when it assesses its subject-matter jurisdiction.

. That plaintiff felt ambushed by the government’s insistence that it submit evidence

3 The parties hotly dispute whether this was the case. The government argues that its point about the absence of affidavits “was not a ‘new argument’ raised out of the blue” but instead “a proper response to an issue raised in Plaintiff ’s opposition”: that the Association was claiming representational standing on the basis of unidentified members. Gov’t Opp’n at 4–5 (“Parties are allowed to address matters in a reply brief that are raised for the first time in an opposition.”); see also Mem. of P. & A. in Supp of Defs.’ Mot. to Dismiss [ECF No. 6-1] at 11 (arguing that “[p]laintiff fails to allege facts sufficient to demonstrate that its members would have standing to sue in their own right” but ultimately focusing on plaintiff’s failure to prove causation). The government’s position is persuasive, but ultimately, it is unnecessary for the Court to decide this question—as the Court explains, even assuming the affidavit issue was first raised on reply, the Court could still rely on it.

6 supporting its standing to sue neither precluded the Court from dismissing plaintiff’s complaint on

that basis nor merits alteration of the judgment now.

To its credit, the Association acknowledges the Court’s sua sponte obligation to assess a

plaintiff’s standing, Pl.’s Mot. at 3 (“The Plaintiff fully acknowledges that this Court could raise

the issue of the lack of affidavits on its own, even without the Defendants having raised it.”), but

it contends that this fact cannot cure the Court’s alleged error. Instead, as discussed in greater

depth below, the Association now explains that it withheld the affidavits out of concern that

submitting them would violate agency Touhy regulations, which govern when and how federal

employees may provide evidence in certain lawsuits. See Pl.’s Mot. at 4–5. The Association

argues that “even [if the Court raised the affidavit issue sua sponte], the Plaintiff should have still

had the opportunity to respond, including via provision of the affidavits, once the Court had

informed the Plaintiff of its position that Touhy did not apply to this matter.” Id. at 3. Failing to

give the Association such an opportunity, then, was an error meriting reconsideration.

The Court disagrees. First of all, the Association never sought leave to file a sur-reply, 4

and it did not meaningfully present its Touhy explanation to the Court until the present motion for

reconsideration. To be sure, the Association gestured to Touhy in its opposition brief (though

without citing any regulation purportedly barring the affidavits in question), see Pl.’s Mem. of P.

& A. in Opp’n to Defs.’ Mot. to Dismiss at 17 (“COAUSPHS has identified two active members,

one from USPHS and the other from NOAA, subject to Touhy, that are willing to join as parties-

in-interest to the present litigation.”), and the Court divined enough of plaintiff’s argument that it

was able to address the issue in a footnote, see Mar. 30 Mem. Op. at 7 n.3. But the Association

4 Although the Court issued its opinion only five days after the government filed its reply brief, that period of time is not so short that plaintiff could not possibly have sought leave to file a sur-reply if it felt doing so was necessary to clarify a jurisdictional issue.

7 now seems to think that, on the basis of those vague hints in its opposition, the Court had an

obligation to investigate which regulations might apply to this case, issue an advisory opinion

informing plaintiff whether those regulations do apply, and then give plaintiff a third opportunity

(after its complaint and opposition brief) to provide evidence supporting its standing.

Put simply, that is not how this works. The Association had a well-settled obligation to

provide evidence supporting its standing to sue (and thus the Court’s subject-matter jurisdiction).

See Mar. 30 Mem. Op. at 7–8 (citing Twin Rivers Paper Co. LLC v. SEC,

(D.C. Cir.

2019)). It did not do so, nor did it provide a coherent explanation for this omission or give the

Court any reason to think that it was likely to submit such evidence if given another chance.

Especially in these circumstances, the Association was not entitled to advance warning of the

Court’s decision or a third opportunity to do what it should have done at the outset. The Court

sees neither error nor injustice in its decision to reject plaintiff’s claim of representational standing

without sua sponte calling for supplemental briefing. 5

II. The Association’s Newly-Submitted Affidavits Do Not Warrant Reconsideration

The Association also asks for reconsideration based on affidavits showing, it claims, that

at least one of its members (and therefore, the Association itself) has standing to sue. See Pl.’s

Mot. at 4–7; Pl.’s Reply at 3–6. These affidavits warrant reconsideration, plaintiff asserts, because

(1) they constitute newly-available evidence and (2) failing to consider them (and thereby letting

the Court’s dismissal stand despite evidence demonstrating the Court’s jurisdiction) would work

manifest injustice.

5 Moreover, by allowing plaintiff to explain its failure to submit the affidavits and present them for the Court’s consideration, the instant motion for reconsideration has accomplished what a hypothetical sur-reply would have. Thus, even if the Court’s decision not to call for supplemental briefing was “error,” it was harmless.

8 At the outset, the government correctly notes that plaintiff’s affidavits are not exactly

“new.” See Gov’t Opp’n at 5–6. “Courts routinely deny Rule 59(e) motions where all relevant

facts were known or should have been known by the party prior to the entry of judgment because

Rule 59(e) does not afford an opportunity to raise new arguments that could have been raised

[earlier].” Johnson, 266 F. Supp. 3d at 211–12; accord Niedermeier, 153 F. Supp. 2d at 29–30

(collecting cases). Plaintiff does not claim that it was unaware of the members’ identities or that

obtaining the affidavits was somehow impossible before now.

Instead, as briefly noted above, plaintiff now states that one of its previously-unidentified

members, Captain Clarence Smiley, is detailed to the Department of Health and Human Services

(“HHS”), and plaintiff was concerned that Captain Smiley would violate HHS’s Touhy

regulations, located at

.1–2.6, by submitting an affidavit in this case. See Pl.’s Mot.

at 4. Due to the “high complexity” and “completely uncertain” nature of whether Captain Smiley

was permitted to submit an affidavit, Pl.’s Mot. at 4; Pl.’s Reply at 4, plaintiff withheld the

envisioned affidavits “[o]ut of caution for the personnel willing to testify,” Pl.’s Mot. at 4.

Accordingly, plaintiff argues, the Court “should consider the affidavits to be relevant new evidence

which merit reconsideration.”

.

There may well be instances in which reconsideration under Rule 59(e) would be

appropriate because a party withheld pertinent evidence due to well-founded concerns that

providing such evidence would be unlawful or have serious adverse consequences. This is not

such a case. HHS’s Touhy regulations are crystal clear: they do not apply to the present action.

Section 2.1(d)(1) states that “[t]his part does not apply to . . . [a]ny civil or criminal proceedings

where the United States, the Department of Health and Human Services . . . or any other federal

agency is a party.”

(d)(1); see also

§ 2.4(a) (setting forth procedures governing

9 voluntary testimony by HHS employees in cases “not subject to the exceptions set forth in § 2.1(d)

of this part”). Indeed, the overarching title of the section is “Testimony by Employees and

Production of Documents in Proceeding Where the United States is Not a Party.” 45 C.F.R.

subtitle A, subchapter A, pt. 2 (emphasis added). But the United States is, in fact, a defendant in

the present action, see Compl. at 1; by their plain terms, the HHS Touhy regulations do not apply

here.

Reconsideration on the basis of new evidence is appropriate only when the evidence in

question was “previously unavailable despite the exercise of due diligence.” Am. Bar. Ass’n,

(emphasis added) (citation omitted). Given the clarity of the regulations in

question, the Court is not persuaded that plaintiff exercised due diligence in deciding not to submit

member affidavits—rather than caution in the face of unsettled law, plaintiff’s decision appears to

have been, at best, the result of good-faith legal error. Reconsideration under Rule 59(e) is

warranted only in “extraordinary circumstances,” e.g., Niedermeier, 153 F. Supp. 2d at 28—

rescuing plaintiff’s counsel from the consequences of his own misapprehension of the law does

not satisfy this standard. The Court accordingly will not reconsider its prior decision on the ground

that plaintiff’s two new affidavits are newly-available evidence.

Nor would failing to consider these affidavits now result in manifest injustice. Contra Pl.’s

Mot. at 5. If the affidavits did indeed demonstrate that the Association has standing, then

reconsideration might well be warranted in order to prevent manifest injustice. But contrary to

plaintiff’s assertions, the two affidavits attached to its motion—one from Commander James

Brinkley, Ex. 1 to Pl.’s Mot. [ECF No. 17-1] (“Brinkley Aff.”), and one from Captain Clarence

Smiley (discussed above), Ex. 2 to Pl.’s Mot. [ECF No. 17-1] (“Smiley Aff.”)—are insufficient to

establish the declarants’ (and therefore the Association’s) standing to sue. Cf. Am. Bar Ass’n, 388

10 F. Supp. 3d at 26 (“[A] party moving for relief under Rule 59(e) has not met its burden if the new

evidence ‘would not have changed [the Court’s] outcome.’” (second alteration in original) (quoting

Roane v. Gonzales,

(D.D.C. 2011))).

Commander Brinkley declares that he is a member of the NOAA Corps and of the

Cherokee Nation of Oklahoma. Brinkley Aff. After providing highlights of his service history

and his view of the NOAA Corps’s mission, Brinkley states that he “support[s] the efforts of the

[Association] to have the seal of the NOAA Commissioned Officer Corps placed on the National

Native American Veterans Memorial.”

Moreover, he declares that he “personally feel[s] that

[his] service and veteran status has been reduced to nothing since [his] branch of service is not on

the existing memorial” and that “[t]he lack of recognition in service to this country is personally

insulting.”

But missing from this affidavit—and from plaintiff’s reconsideration briefing—is

any indication that Commander Brinkley is a member of COAUSPHS. As a consequence, even if

Commander Brinkley’s affidavit would be sufficient to show that he has standing individually, it

still could not show that the Association has standing to sue on his behalf. Cf. Food & Water

Watch,

(“An association . . . has [representational] standing only if . . . at least one

of its members would have standing to sue in [his or her] own right . . . .” (emphasis added)

(citation omitted)).

On the other hand, Captain Clarence Smiley declares that he is an officer in the UPSHS

Corps; a member of the Navajo Nation of Arizona, New Mexico, and Utah; and, importantly, a

member of COAUSPHS. Smiley Aff. But although he is a member of the Association, Captain

Smiley fails to allege a cognizable injury-in-fact. To have standing to sue in federal court, an

individual “must have suffered an injury in fact—an invasion of a legally protected interest which

is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”

11 Lujan v. Defs. of Wildlife,

(1992) (cleaned up) (citations and footnote omitted).

“In other words, for a federal court to have authority under the Constitution to settle a dispute, the

party before it must seek a remedy for a personal and tangible harm. ‘The presence of a

disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s

requirements.’” Hollingsworth v. Perry,

(2013) (quoting Diamond v. Charles,

(1986)).

Captain Smiley’s affidavit does not establish that he has suffered a qualifying injury-in-

fact. After explaining the mission and values of the USPHS Corps and the important contributions

of its officers, Captain Smiley states that, “[a]s a Native American US Navy veteran who is now a

USPHS officer, I support the efforts of the [Association] to have the seal of the USPHS placed on

the National Native American Veterans Memorial.” Smiley Aff.; see also

(“The services of

my fellow USPHS officers . . . in my opinion, deserve[] full recognition.”). But supporting the

goal of a lawsuit does not mean someone has standing to bring it, nor does desiring a certain

outcome mean that he can sue to compel that state of affairs. Captain Smiley’s affidavit

demonstrates, at most, that he disagrees with defendants’ decision to omit the USPHS Corps from

the Memorial and that he hopes the present lawsuit succeeds. Wishing the government had made

a different decision, without more, is insufficient to give Captain Smiley—and by extension the

Association—standing to sue. Because neither of the two affidavits attached to plaintiff’s motion

for reconsideration establish the Association’s standing to sue, denying the present motion would

not result in manifest injustice.

* * * * *

Accordingly, upon consideration of [17] plaintiff’s motion for reconsideration, and the

entire record herein, and for the reasons set forth above, it is hereby

12 ORDERED that plaintiff’s motion for reconsideration is DENIED.

SO ORDERED.

/s/ JOHN D. BATES United States District Judge Dated: June 25, 2022

13