Food & Water Watch, Inc. et al v. Environmental Protection Agency et al

Filing 277

ORDER by Judge Edward M. Chen Denying in Part 265 Defendant's Motion for Relief. (emcsec, COURT STAFF) (Filed on 1/13/2021)

Case 3:17-cv-02162-EMC Document 277 Filed 01/13/21 Page 1 of 4

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

FOOD & WATER WATCH, INC., et al.,
Plaintiffs,

8
9
10
11

Case No. 17-cv-02162-EMC

v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.,

ORDER DENYING IN PART
DEFENDANT’S MOTION FOR
RELIEF
Docket No. 265

United States District Court
Northern District of California

Defendants.
12
13
14
15

In November 2016, Plaintiffs filed their original petition asking Defendant EPA to conduct

16

rulemaking to prohibit the addition of fluoridation chemicals to drinking water supplies, which the

17

EPA denied on February 17, 2017. See Docket No. 265 (“Mot.”) at 1. Plaintiffs promptly filed

18

suit in this Court shortly thereafter. See Docket No. 1. (“Compl.”).

19

On August 10, 2020, after a bench trial, this Court issued an order holding all proceedings

20

in abeyance in order to “afford the EPA an opportunity to consider the significant scientific

21

developments that have occurred since the original petition was filed.” Docket No. 262

22

(“Abeyance Order”) at 5.

23

On October 28, 2020, almost eighty days after this Court issued its abeyance order, the

24

EPA filed the instant “motion for relief” from the abeyance order pursuant to Federal Rule of Civil

25

Procedure 60(b)(6). See Mot. The gravamen of the motion is that the Court erred because it

26

“should have dismissed this case for lack of jurisdiction, but instead has permitted Plaintiffs an

27

opportunity to create standing where none exists.” Id. at 1. The EPA asks this Court to vacate its

28

abeyance order and dismiss this case with prejudice. Id.

Case 3:17-cv-02162-EMC Document 277 Filed 01/13/21 Page 2 of 4

Importantly, on November 4, 2020, Plaintiffs filed a supplemental petition1 with the EPA

1
2

requesting that the EPA reconsider its earlier denial in light of new information, including:
“1) the trial record together with Plaintiffs’ admitted exhibits and
summary of the record; 2) the MIREC and ELEMENT studies; 3)
the pooled BMD analysis of the MIREC and ELEMENT data; 4) the
National Toxicology Program’s revised draft monograph containing
a systematic review of the fluoride literature; 5) a published
statement from former NTP director Dr. Linda Birnbaum, about the
‘consequential’ findings of the NTP’s revised monograph; 6) the
facts to which the parties stipulated at trial; and 7) several orders of
this Court which reject legal positions that EPA relied upon in its
denial of the initial petition.”

3
4
5
6
7
8
9

See Docket No. 272 (“Opp’n”) at 2. In other words, the EPA is now able fully to reconsider its
denial of Plaintiffs original petition, which is why this Court issued the abeyance order in the first

11

United States District Court
Northern District of California

10

place.
The EPA’s instant motion for relief from the abeyance order is improper for several

12
13

reasons. First, the motion is procedurally improper because Rule 60(b)(6) only offers relief from

14

final judgments or orders, not from interlocutory orders. See Fed. R. Civ. P. 60(b)(6) (“On motion

15

and just terms, the court may relieve a party or its legal representative from a final judgment,

16

order, or proceeding for . . . any [ ] reason that justifies relief.” (emphasis added)); Banister v.

17

Davis, 140 S. Ct. 1698, 1710 (2020) (“A Rule 60(b) motion . . . attacks an already completed

18

judgment.”); Advisory Committee’s Notes on 1946 Amendments to Fed. R. Civ. P. 60 (b) (“The

19

addition of the qualifying word ‘final’ emphasizes the character of the judgments, orders or

20

proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not

21

brought within the restrictions of the rule.”); Mateo v. M/S KISO, 805 F. Supp. 761, 786 (N.D.

22

Cal. 1991) (“Rule 60(b) motions apply only to final judgments, however, and not to interlocutory

23

rulings.”); Kraft v. Old Castle Precast Inc., No. LA CV 15-00701-VBF, 2016 WL 4120049, at *2

24
25
26
27
28

The Court’s abeyance order directed Plaintiffs to file a new petition with the EPA. See Abeyance
Order at 4. Plaintiffs explain, however, that they filed a supplemental petition instead “after
further research revealed that it was EPA’s practice to consider second petitions seeking identical
relief as ‘motions for reconsideration.’” See Docket No. 272 (“Opp’n”) at n. 1 (citing cases).
Therefore, according to Plaintiffs, the supplemental petition is procedurally appropriate because it
“did not seek new relief.” Id. at 2. Whether the supplemental petition is procedurally improper or
not is for the EPA—not this Court—to decide in the first instance.
2
1

Case 3:17-cv-02162-EMC Document 277 Filed 01/13/21 Page 3 of 4

1

(C.D. Cal. Aug. 2, 2016), aff’d sub nom., 700 F. App’x 704 (9th Cir. 2017) (“A motion under Rule

2

60(b) or Rule 59(e) is only appropriate when final judgment has been entered on all claims.”

3

(quoting Panarello v. City of Vineland, No. 12-4165 (RBK/JS), 2016 WL 3638108, *5 (D.N.J.

4

July 7, 2016)).

5

Second, the EPA’s motion is improper even if the Court construes it as a motion for

6

reconsideration pursuant to Federal Rule of Civil Procedure 54(b) and Civil Local Rule 7-9. As an

7

initial matter, Local Rule 7-9(a) only allows parties to file motions for reconsideration with leave

8

of court. See Civ. Loc. R. 7-9(a) (“No party may notice a motion for reconsideration without first

9

obtaining leave of Court to file the motion.”). Here, the EPA filed its motion without obtaining

10

United States District Court
Northern District of California

11
12
13
14
15
16

leave of court, improperly styling it as a “motion for relief.”
More importantly, motions for reconsideration are only appropriate under three
circumstances:
(1) “a material difference in fact or law exists from that which was
presented to the Court before entry of the interlocutory order for
which reconsideration is sought;” (2) “the emergence of new
material facts or a change of law occurring after the time of such
order;” or (3) “a manifest failure by the Court to consider material
facts or dispositive legal arguments which were presented to the
Court before such interlocutory order.” ).

17

Civ. Loc. R. 7-9(b)(1)–(3). The EPA relies on no new facts or legal authority to argue that the

18

Court should dismiss Plaintiffs’ case for lack of standing. In fact, the Court has not yet ruled on

19

whether Plaintiffs have standing or not, so there is nothing to reconsider. See Abeyance Order at 1

20

(“As stated on the record at the August 6, 2020 status conference, the Court believes that there are

21

serious questions regarding whether the named Plaintiffs in this case have standing.”). Indeed, the

22

EPA made the exact same lack of standing argument before the Court issued the abeyance order.

23

See Docket Nos. 254 (“Br. on Standing”); 255 (“EPA's Prop. Findings of Fact”); 260 (“EPA's

24

Resp. to Pls. Further Statement on New Petition”). That means that the instant motion

25

contravenes Local Rule 7-9(c)’s prohibition against motions for reconsideration that “repeat any

26

oral or written argument made by the applying party in support of or in opposition to the

27

interlocutory order which the party now seeks to have reconsidered.” Civ. Loc. R. 7-9(c). Simply

28

put, the EPA’s motion brings up nothing new. Therefore, reconsideration is not appropriate.
3

Case 3:17-cv-02162-EMC Document 277 Filed 01/13/21 Page 4 of 4

1
2
3

Accordingly, the EPA’s “motion for relief” from this Court’s abeyance order is DENIED
in part as to the EPA’s request to vacate the abeyance order and dismiss the complaint.
Although the Court sees no need to vacate the abeyance order and dismiss this action, the

4

question of Plaintiffs’ standing under the complaint as it is currently pled remains. Plaintiffs

5

attempt to assuage this Court’s concerns by pointing out that that their supplemental petition with

6

the EPA cures any standing issues by

7
8
9
10

[R]eiterating that millions of Americans are at risk from fluoridated
water, including members of Plaintiff Food & Water Watch who are
currently pregnant, actively seeking to become pregnant, and/or
mothers of infants; members like Jessica Trader, Jennifer Baugh,
Jacqueline Devereaux, Brooke Errett, Leah Garland, Hanna
Rodgers, Olivia Stancil, Whitney Stolman, and Chassity Woolums.

United States District Court
Northern District of California

11

Opp’n at 2-3. However, none of these women are named plaintiffs in their original EPA petition

12

or in the complaint.

13

Accordingly, the EPA’s motion is GRANTED in part as to the EPA’s request to amend

14

the abeyance order to require Plaintiffs to seek leave to amend their complaint should the EPA

15

deny their supplemental petition. In seeking leave to amend, Plaintiffs will have to justify their

16

request, including addressing why any attempt to allege a new basis for standing following any

17

denial by the EPA of their supplemental petition would not be futile.

18

This order disposes of Docket No. 265.

19
20

IT IS SO ORDERED.

21
22

Dated: January 13, 2021

23
24
25

______________________________________
EDWARD M. CHEN
United States District Judge

26
27
28
4