Hornbeck Offshore Services, L.L.C. v. Salazar et al

Filing 115

MOTION to Set Aside Preliminary Injunction Order by Center for Biological Diversity, Defenders of Wildlife, Florida Wildlife Federation, Natural Resources Defense Council, Sierra Club. Motion Hearing set for 7/28/2010 10:00 AM before Judge Martin L.C. Feldman. (Attachments: # 1 Memorandum in Support, # 2 Notice of Hearing)(Wannamaker, Catherine)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

HORNBECK OFFSHORE SERVICES, LLC, et al., Plaintiffs, v. SALAZAR, et al., Defendants. and DEFENDERS OF WILDLIFE, et al., Defendants-Intervenors.

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2:10-cv-01663-MLCF-JCW SECTION F JUDGE FELDMAN MAGISTRATE WILKINSON

DEFENDANT-INTERVENORS' MEMORANDUM IN SUPPORT OF THIER MOTION FOR RELIEF FROM PRELIMINARY INJUNCTION ORDER AND THEIR REQUEST THAT THE COURT INDICATE IT WOULD VACATE SUCH ORDER UPON REMAND ______________________________________________________________________________ Defendant-Intervenors respectfully submit this memorandum in support of their motion for relief from this Court's June 22, 2010 Preliminary Injunction Order (Docs. 67 & 68). MEMORANDUM IN SUPPORT Federal Rule of Civil Procedure 60(b) authorizes this Court to relieve DefendantIntervenors from an order on the basis of "newly discovered evidence" or for "any other reason

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that justifies relief." The facts and law set forth in Defendant-Intervenors' Motion for Disqualification (filed July 2, 2010) show that both grounds are met in this case. Because that Motion shows that Judge Feldman must recuse under 28 U.S.C. § 455, this Court should vacate the Preliminary Injunction Order. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 867-868 (1988). At this time, however, the Court's jurisdiction to provide affirmative relief is limited to indicating that it would vacate the order upon remand. Fed. R. Civ. P. 62.1(a)(3); Lopez Dominguez v. Gulf Coast Marine & Assocs., Inc., -- F.3d. --, 2010 WL 2139425, at * 5 (5th Cir., May 28, 2010). After the Court issued the Preliminary Injunction Order on June 22, 2010, DefendantIntervenors became aware of a 2008 Financial Disclosure Report which disclosed that Judge Feldman then held stock in several oil and offshore energy companies. Defendant-Intervenors promptly moved on June 23, 2010 for a disclosure of current interests. (Doc. No. 73) The Court granted that Motion on June 24, 2010 (Doc. No. 82), providing that "the Court's most current Financial Disclosure Report will be released by the Administrative Office of the United States Courts as soon as their security protocol on the release of federal judges' Financial Disclosure Reports has been satisfied." Upon analyzing the Court's current disclosure, the Defendant-Intervenors promptly filed their Motion for Disqualification on July 2, 2010, alleging a violation of 28 U.S.C. § 455. The U.S. Supreme Court has explained that to determine whether to vacate a judgment after violation of § 455(a), "it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process." Liljeberg, 486 U.S. at 864. Courts "must continuously bear in mind that to perform [their] high function in the best way

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justice must satisfy the appearance of justice." Id. (internal quotation marks and citations omitted). In the Liljeberg case, the Court accepted that the judge had made an honest mistake. Id. Nonetheless, the case presented facts "that might reasonably cause an objective observer to question [the judge's] impartiality." Id. at 865. Here, the facts set forth in the DefendantIntervenors' Motion for Disqualification (incorporated by reference) similarly could reasonably cause an objective observer to question the Court's impartiality. Especially in light of the extensive public interest in the instant case, this Court should not allow such a question of impartiality to persist. Accordingly, the Preliminary Injunction order must be vacated. The Defendant-Intervenors note that it would not be appropriate for this Court to vacate the order while the Fifth Circuit has jurisdiction of the Preliminary Injunction Order. But this Court has authority to "indicate[ ] that it will grant the motion" and "the appellant [may] then make a motion in the Court of Appeals for a remand of the case in order that the district court may grant such motion." Lopez Dominguez, -- F.3d. --, 2010 WL 2139425, at * 5; Ferrell v. Trailmobile, Inc., 223 F.2d 697, 699 (5th Cir. 1955) ("[I]f [the district court] indicates that it will grant the motion, the appellant should then make a motion in the Court of Appeals for a remand of the case in order that the district court may grant such motion."); see also Fed. R. Civ. P. 62.1(a)(3). CONCLUSION For all the foregoing reasons, this Court should indicate that it would GRANT the instant motion and vacate the Preliminary Injunction order upon remand. Respectfully submitted this 2nd day of July, 2010,

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/s Catherine M. Wannamaker John Suttles Louisiana Bar No. 19168 Counsel for Defendant-Intervenor Defenders of Wildlife and Center for Biological Diversity SOUTHERN ENVIRONMENTAL LAW CENTER 200 West Franklin Street, Suite 330 Chapel Hill, North Carolina 27516 Telephone: [phone] Facsimile: [phone] [e-mail] Catherine M. Wannamaker, admitted pro hac vice GA Bar No. 811077 Counsel for Defendant-Intervenors Defenders of Wildlife and Center for Biological Diversity SOUTHERN ENVIRONMENTAL LAW CENTER 127 Peachtree Street, Suite 605 Atlanta, Georgia 30303 Telephone: [phone] Fax: [phone] /s_Alisa A Coe____ Alisa A. Coe La. Bar No. 27999 David G. Guest Fla. Bar No. 0267228 Admitted pro hac vice Monica K. Reimer Fla. Bar No. 0090069 Admitted pro hac vice Earthjustice P.O. Box 1329 Tallahassee, FL 32302-1329 Phone: [phone] Fax: [phone] COUNSEL FOR SIERRA CLUB and FLORIDA WILDLIFE FEDERATION

/s Adam Babich Adam Babich Louisiana Bar No. 27177 Counsel for Sierra Club TULANE ENVT'L LAW CLINIC 6329 Freret Street New Orleans, LA 70118 Telephone: [phone] Facsimile: [phone] [e-mail]

/s Mitchell Bernard Mitchell Bernard NY Bar No. 1684307 Admitted pro hac vice Natural Resources Defense Counsel 40 West 20th Street New York, NY 10011 Phone: [phone] Fax: [phone]

COUNSEL FOR NATURAL RESOURCES DEFENSE COUNCIL, INC.

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CERTIFICATE OF SERVICE

I hereby certify that on July 2, 2010, I caused as copy of the foregoing to be served through the Court's CM/ECF system to all parties. /s Adam Babich Attorney

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