USA v. DUKE ENERGY CORP.

Filing 473

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 09/17/2014; that Defendant's Motion for Leave to File Supplemental Motion for Summary Judgment (Doc. 457 ) is DENIED. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA,
Plaintiff,
ENVIRONMENTAL DEFENSE,
NORTH CAROLINA SIERRA CLUB,
and NORTH CAROLINA PUBLIC
INTEREST RESEARCH GROUP,
Plaintiff-Intervenors,
v.
DUKE ENERGY CORPORATION,
Defendant.

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1:00CV1262

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This matter is before the court on Defendant Duke Energy
Corporation’s Motion for Leave to File Supplemental Motion for
Summary Judgment (“Duke’s Mot.”) (Doc. 457).

Duke filed this

motion nearly two years after both parties filed cross-motions
for summary judgment, asserting three justifications for
re-opening summary judgment briefing: (1) that recent
developments in case law demonstrate that this court’s 2003
decision regarding the applicability of the statute of
limitations was incorrect, (2) that Duke’s ongoing retirement of
certain power plants at issue in this case renders moot the

Government’s claims for equitable relief, and (3) that recent
case law prohibits the Government from obtaining equitable
relief for the types of violations at issue, regardless of the
mootness issue.1 (Id. at 2-3.) After careful consideration of the
parties’ written briefs as well as the oral arguments presented
at the April 4, 2014 hearing, the court concludes that Duke’s
motion should be denied for the reasons set forth below.
I.

RELEVANT CASE HISTORY

As detailed many times over in the various orders,
pleadings, and motions spanning its fourteen-year history, this
case arises from Duke’s alleged failure to obtain required
permits prior to making certain statutorily-defined
“modifications” to some of its coal-fired power plants. See,
e.g., United States v. Duke Energy Corp. (“Duke IV”), No.
1:00CV1262, 2010 WL 3023517, at *1 (M.D.N.C. July 28, 2010).

1

The

Clearly, the fact that Duke has begun to retire and
decommission a number of the plants at issue in the case may
affect the remedies available to Plaintiffs. However, Duke
admits that it has no plans to retire at least two plants at
issue, see Duke’s Mot. (Doc. 457) at 5, such that any
application of the mootness doctrine based on changed factual
circumstances will not dispose of the entire case. Additionally,
because this case has been bifurcated into liability and
remedies stages, this court will refrain from addressing Duke’s
legal arguments regarding the availability of equitable relief
until the liability stage is concluded. Therefore, the remainder
of this order only discusses Duke’s argument that this court
should revisit its 2003 ruling regarding the non-applicability
of the statute of limitations.
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relevant permitting requirements, which come from the Prevention
of Significant Deterioration (“PSD”) provisions of the Clean Air
Act (“CAA”), “require[] a utility to obtain a pre-construction
permit when proposed changes ‘would increase the actual annual
emission of a pollutant above the actual average for the two
prior years.’” Id. at *5 (quoting Envtl. Def. v. Duke Energy
Corp. (“Duke III”), 549 U.S. 561, 570 (2007)).
Because “[t]he CAA does not provide a specific statute of
limitations applicable to alleged violations of its
provisions[,] . . . [t]he general federal statute of limitations
for civil enforcement actions applies.” United States v. Duke
Energy Corp. (“Duke I”), 278 F. Supp. 2d 619, 649 (M.D.N.C.
2003), aff’d on other grounds, 411 F.3d 539 (4th Cir. 2005),
judgment vacated sub nom. Envtl. Def. v. Duke Energy, 549 U.S.
561 (2007). This statute provides that “an action . . . for the
enforcement of any civil fine, penalty, or forfeiture, pecuniary
or otherwise, shall not be entertained unless commenced within
five years from the date when the claim first accrued.” Id.
(quoting 28 U.S.C. § 2462 (1994)) (internal quotation marks
omitted). Duke, noting that the Government did not file suit
until 2000 and that all of the claims based on alleged PSD
violations accruing after 1994 have been voluntarily dismissed
(see Stipulation of Dismissal of Certain Claims and Defenses
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(Doc. 418)), argues that this five-year statute of limitations
consequently bars any remaining claims. (See Duke’s Mot. (Doc.
457) at 3.)2
The concern with Duke’s argument, however, is that another
district court rejected it over ten years ago when Duke raised
it for the first time. (See generally Duke’s Motions for Partial
Judgment on the Pleadings (Docs. 22 and 37); Order and Judgment
(Doc. 235).) Duke, emphasizing the language of the statute of
limitations that a claim is barred five years from the date it
“first accrue[d],” asserted “that violations of [the PSD]
preconstruction permitting requirements occur when actual
construction is commenced at the facility, and not at some later
time.” Duke I, 278 F. Supp. 2d at 649. Therefore, Duke claimed,
“any civil penalties arising from modifications commenced before
December 22, 1995 [i.e., more than five years before the filing
of the Complaint] are time barred.” Id. at 650. The Government
disagreed with Duke’s characterization of the violations,
arguing that Duke’s failure to obtain a permit was not a
one-time violation, but a continuing violation not encompassed
by the statute of limitations. Id. at 649.

2

All citations in this Order to documents filed with the
court refer to the page numbers located at the bottom right-hand
corner of the documents as they appear on CM/ECF.

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The Duke I court sided with the Government, reasoning that
the PSD preconstruction permits, had Duke obtained them, would
have “set forth emission limitations for [each plant] following
the construction activity” and subsequently required Duke to
“operate in accordance with the terms of that permit.” Id. at
650.

The Duke I court further reasoned that:
[B]ecause the PSD permitting provisions provide both
preconstruction obligations and subsequent obligations
on operations, Duke Energy’s alleged violation of
failing to undergo the PSD permitting process does not
terminate upon the completion of construction
activity. The violation continues because each day
that Duke Energy operates an allegedly modified plant
and emits pollutants into the atmosphere, it may be in
violation of the requirement to comply with the
operation conditions, i.e., the emission limitations,
that would have been contained within a PSD permit had
Duke Energy submitted to the permitting process.

Id. at 651.

See also United States v. Marine Shale Processors,

81 F.3d 1329, 1355-56 (5th Cir. 1996); United States v. Ohio
Edison Co., No. 2:99-cv-1181, 2003 WL 23415140, at *6 (S.D. Ohio
Jan. 17, 2003); United States v. Am. Elec. Power Serv. Corp, 137
F. Supp. 2d 1060, 1066 (S.D. Ohio 2001).
As Duke points out, however, four Courts of Appeals have
since found that failure to obtain a PSD preconstruction permit
is a one-time violation – a conclusion contrary to the Duke I
court’s opinion. See United States v. EME Homer City Generation,
727 F.3d 274 (3d Cir. 2013); United States v. Midwest
Generation, LLC, 720 F.3d 644 (7th Cir. 2013); Sierra Club v.
- 5 -

Otter Tail Power, Co., 615 F.3d 1008 (8th Cir. 2010); Nat’l
Parks and Conservation Ass’n v. Tenn. Valley Auth., 502 F.3d
1316 (11th Cir. 2007). All four of these cases employ
substantially the same basic reasoning.

First, they note that

the plain language of the PSD statute prohibits “construction”
or “modification” of a facility without obtaining the required
permits, but is silent on the issue of “operation.” See, e.g.,
EME Homer City, 727 F.3d at 284.

Additionally, they emphasize

that the CAA contains a separate operating permit requirement
above and beyond the PSD preconstruction permit requirements,
making it unlikely that Congress intended for the
preconstruction permit to act as an operating permit, as well.
See id. at 285. Finally, they observe that the PSD enforcement
mechanisms do not appear to allow a remedy for operation without
a preconstruction permit. See id. at 285 (“Nowhere do these
[preconstruction permit] provisions authorize enforcement
against a person who ‘operates’ a source without satisfying
applicable PSD requirements.”). Suffice it to say that each of
these Courts of Appeals considered and rejected reasoning
substantially similar to that employed by the district court in
its 2003 ruling. See, e.g., id. at 286 (“The [Government’s]
argument is simple: obtaining a PSD permit is a condition of
operating a source because PSD permits impose some operational
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conditions on the sources they govern. . . . But Ockham’s Razor
reminds us that simplicity in argument, without more, is no
barometer of merit.”).
This court finds the decisions of these Courts of Appeals
well-reasoned, and cannot say definitively that the Duke I court
would not have been persuaded by them had they existed ten years
ago. Nevertheless, this court will decline Duke’s invitation to
re-address the statute of limitations question because the
doctrine of law of the case counsels heavily against such a
reconsideration.
II.

LAW OF THE CASE DOCTRINE

Even though “a district court retains the power to
reconsider and modify its interlocutory judgments, including
partial summary judgments, at any time prior to final judgment
when such is warranted[,]” Am. Canoe Ass'n v. Murphy Farms,
Inc., 326 F.3d 505, 514-15 (4th Cir. 2003) (internal citations
omitted), “[t]he law of the case doctrine ‘posits that when a
court decides upon a rule of law, that decision should continue
to govern the same issues in subsequent stages in the same
case,’” TFWS, Inc. v. Franchot, 572 F.3d 186, 191 (4th Cir.
2009) (citing United States v. Aramony, 166 F.3d 655, 661 (4th
Cir. 1999)). This doctrine “is designed to serve the goals of
finality and predictability in the trial court[,] . . . [but] is
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neither absolute nor inflexible; it is a rule of discretion
rather than a jurisdictional requirement.”3

Walker v. S.W.I.F.T.

SCRL, 517 F. Supp. 2d 801, 807-08 (E.D. Va. 2007) (citing Smith
v. Bounds, 813 F.2d 1299, 1304 (4th Cir. 1987)). Nevertheless,
the rule will apply “unless: (1) a subsequent trial produces
substantially different evidence, (2) controlling authority has
since made a contrary decision of law applicable to the issue,
or (3) the prior decision was clearly erroneous and would work

3

As the Fourth Circuit has stated, “it bears observing that
whether rulings by one district judge become binding as ‘law of
the case’ upon subsequent district judges is not a matter of
rigid legal rule, but more a matter of proper judicial
administration which can vary with the circumstances. It may
sometimes be proper for a district judge to treat earlier
rulings as binding, sometimes not.” Hill v. BASF Wyandotte
Corp., 696 F.2d 287, 290 n.3 (4th Cir. 1982) (citing Gallimore
v. Missouri Pac. R.R. Co., 635 F.2d 1165 (5th Cir. 1981)).

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manifest injustice.”4

TFWS, 572 F.3d at 191 (internal citation

and quotation marks omitted); accord Sejman v. Warner–Lambert
Co., 845 F.2d 66, 69 (4th Cir. 1988).
In its supplemental briefing, Duke argues that this threecircumstance test applies only “after the court of appeals has
[established the law of the case,]” and does not apply when a
district court is asked to reconsider its own prior decision.
(Def.’s Supplemental Br. in Supp. of Mot. for Leave to File
4

Where an order is not final and does not resolve all
claims, such as in the case of entry of partial summary
judgment, a motion for reconsideration of the order,
interlocutory in nature, is subject to Rule 54(b) of the Federal
Rules of Civil Procedure, not the heightened standards of Rule
59(e) or 60(b). Am. Canoe, 326 F.3d at 514-15. Even so,
“[a]lthough Rules 59(e) and 60(b) do not govern reconsideration
of an interlocutory order, the Fourth Circuit has suggested that
at least parts of those rules may guide a court’s analysis.”
Saint Annes Dev. Co. v. Trabich, Civil No. WDQ-07-1056, 2012 WL
135281, at *3 (D. Md. Jan. 13, 2012) (citing Am. Canoe, 326 F.3d
at 514)).
“[T]he standard of review for exceptions to the law of the
case doctrine is substantially the same as the standard
applicable to [Fed. R. Civ. P.] 59(e) motions [to alter or amend
a judgment].” Brooks v. GAF Materials Corp., 284 F.R.D. 352, 356
n.1 (D.S.C. 2012), amended in part, Civil Action No. 8:11-cv00983-JMC, 2012 WL 5195982 (D.S.C. Oct. 19, 2012), clarified on
denial of reconsideration, Civil Action No. 8:11-CV-00983-JMC,
2013 WL 461468 (D.S.C. Feb. 6, 2013). Because of this
similarity, this court will also look to Rule 59(e) cases for
guidance on how to apply each of the three exceptions to the law
of the case doctrine. See, e.g., Bogart v. Chapell, 396 F.3d
548, 555 (4th Cir. 2005) (“As we have observed, a court may
grant a Rule 59 motion in three circumstances: (1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to
correct a clear error of law or prevent manifest injustice.”
(internal citations and quotation marks omitted)).
- 9 -

Supplemental Mot. for Summ. J. (“Duke’s Supp. Br.”) (Doc. 470)
at 4.) Duke then points to general policy statements and other
declarations purporting to support a more lenient standard for
district courts, but certain of Duke’s cited cases actually
undermine its argument. Compare Duke’s Supp. Br. (Doc. 470) at 5
n.2 (“Thus, the [three-circumstance] standard . . . relied upon
by plaintiffs is controlling only after an appellate decision
has narrowed the district court’s ordinarily ‘broad discretion
to reconsider interlocutory orders.’” (citing Am. Canoe, 326
F.3d at 515)) with Am. Canoe, 326 F.3d at 515 (noting that
“doctrines such as law of the case . . . have evolved as a means
of guiding [a district court’s] discretion” and listing the
three circumstances noted above (citing Sejman v. Warner-Lambert
Co., 845 F.2d 66, 69 (4th Cir. 1988))). Rather than suggesting a
different standard for district courts reconsidering their own
prior decisions, the cases Duke cites merely confirm what has
already been said: that the law of the case doctrine “is a rule
of discretion rather than a jurisdictional requirement.” Walker,
517 F. Supp. 2d at 807-08.
To be sure, the issue often arises after an appellate court
establishes the law of the case for both the district court and
itself.

See, e.g., TFWS, 572 F.3d at 191 (“As a practical

matter, then, once the decision of an appellate court
- 10 -

establishes the law of the case . . . .”).

Significantly,

however, in American Canoe the Fourth Circuit spoke of the law
of the case doctrine and application of the three circumstances
in the context of “a district court retain[ing] the power to
reconsider and modify its interlocutory judgments, including
partial summary judgment, at any time prior to final judgment
when such is warranted.”

Am. Canoe, 326 F.3d at 514-15

(emphasis added).5 Thus, this court will rule on Duke’s motion by

5

District courts in the Fourth Circuit routinely employ the
three circumstances analysis to their own interlocutory orders.
E.g., Long v. O’Reilly’s Auto. Stores, Inc., Civil Action No.
6:12-901-MGL, 2014 WL 2864589, at *2 (D.S.C. June 23, 2014)
(listing three circumstances in discussing evaluation of motion
for reconsideration under Rule 54(b)); Va. Innovations Sciences,
Inc. v. Samsung Elecs. Co., 983 F. Supp. 2d 713, 761-62 (E.D. Va.
2014) (following Am. Canoe); Brooks v. Barney, Civil Action No.
3:13-CV-168, 2013 WL 6712847, at *1 (N.D.W. Va. Dec. 18, 2013)
(quoting Am. Canoe); Boyd v. Coventry Health Care Inc., 828 F.
Supp. 2d 809, 813-14 (D. Md. 2011) (same); Akeva, L.L.C. v. Adidas
Am., Inc., 385 F. Supp. 2d 559, 555-56 (M.D.N.C. 2005); see
Louisville/Jefferson Cnty. Metro Gov’t v. Hotels.com, L.P., 590
F.3d 381, 389 (6th Cir. 2009) (describing the three circumstances
analysis as providing grounds upon which “courts will find
justification for reconsidering interlocutory orders”); Official
Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers &
Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (noting that, in
applying Rule 54(b), prior interlocutory decisions “may not
usually be changed unless there is an intervening change in
controlling law, the availability of new evidence, or the need to
correct a clear error or prevent manifest injustice” (internal
citations and quotations omitted)); but see Saqui v. Pride Cent.
Am., LLC, 595 F.3d 206, 210-11 (5th Cir. 2010) (concluding
district court is “free to reconsider and reverse its
[interlocutory] decision for any reason it deems sufficient, even
in the absence of new evidence or an intervening change in or
clarification of the substantive law”).
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referencing the three circumstances outlined above.
A.

New Evidence

Duke’s argument that the court should reconsider the Duke I
decision rests entirely on intervening developments in case law.
Duke does not argue, for instance, that in Duke I, the court had
an incomplete picture of the facts relating to the statute of
limitations – i.e., the plant modification schedule or the date
the Complaint was filed. Therefore, this exception to the law of
the case doctrine is inapplicable.6
B.

Change in Controlling Authority

The parties agree that the Fourth Circuit has yet to
consider the question of whether failure to obtain a PSD
preconstruction permit under the CAA is a one-time or continuing
violation. Therefore, this exception to the law of the case
doctrine is also inapplicable.

6

In its Supplemental Brief in Support of its Motion for
Leave to File Supplemental Motion for Summary Judgment (Doc.
470), Duke argues that “the decommissioning of the plants in
question is significant new evidence which was not available in
2003.” (Id. at 8.) While this “evidence” may bear on the
question of available remedies, discussed in note 1, supra, it
is irrelevant to the question of whether this court should
revisit the Duke I decision regarding the statute of
limitations.
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C.

Clear Error or Manifest Injustice
1.

Clear Error

Duke urges us to find that “[t]he developments in the case
law since 2003 show [the Duke I] decision to be clearly
erroneous.” (Duke’s Mot. (Doc. 457) at 3.) “Clear error occurs
when we are ‘left with the definite and firm conviction that a
mistake has been committed.’” United States v. Woods, 477
F. App’x 28, 29 (4th Cir. 2012) cert. denied, ____ U.S. ____,
133 S. Ct. 965 (2013) (citing United States v. Harvey, 532 F.3d
326, 336 (4th Cir. 2008)).
As discussed supra, this court is impressed with the
reasoning employed by the Courts of Appeals who have determined
that failure to obtain a PSD preconstruction permit is a onetime violation. The statutory interpretation in those cases is
straightforward and typical, and makes intuitive sense. See
supra at 5-6. However, this court also finds the Duke I decision
to be well-reasoned and defensible, particularly in light of the
fact that several other courts have recently recognized or
adopted the same reasoning and concluded that failure to obtain
a PSD preconstruction permit is a continuing violation. See
United States v. Cemex, Inc., 864 F. Supp. 2d 1040, 1048 (D.
Colo. 2012) (“Given that the CAA is a statute intended to
prevent emission of air pollution, the continued emission of
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pollutants that would otherwise be limited had the source
complied with the PSD and NNSR [Non-attainment New Source
Review] programs could be considered a repeated injury.”);
Sierra Club v. Portland Gen. Elec. Co., 663 F. Supp. 2d 983, 993
(D. Or. 2009) (“Because [the Title V] program contains
operational requirements does not mean that the [PSD
preconstruction] program must lack similar requirements. As
discussed above, the language of both the federal and Oregon PSD
programs create ongoing operational requirements.”); Sierra Club
v. Dayton Power & Light, Inc., No. 2:04 CV 905, 2005 WL 1972549,
*3 (S.D. Ohio Aug. 12, 2005) (“[T]he Court finds it illogical to
conclude that a defendant may only be held liable for
constructing a facility, rather than operating such facility,
without complying with the permit requirements.”); cf. Nat’l
Parks Conservation Ass’n v. Tenn. Valley Auth., 480 F.3d 410,
419 (6th Cir. 2007) (holding, while interpreting a Tennessee
regulation with substantially the same language as the PSD
regulations applicable in this case, that failure to obtain a
preconstruction permit constitutes a recurrent violation for
each day the plant operates without one, even postconstruction).
The analysis as to whether operation is a recurring
violation is further complicated by the fact that the portion of
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the CAA requiring preconstruction permits was implemented in
1977, while the portion requiring operating permits was
implemented in 1990. In those intervening years,
[C]itizens, regulators, and even the owners and
operators of pollution sources had difficulty knowing
which of the Clean Air Act's many requirements applied
to a particular pollution source. . . . [T]he only
[operational] requirements easily discoverable were
those expressly listed in the preconstruction permits
issued under the New Source Review program; any other
applicable requirements under the Clean Air Act were
scattered among separate records, permits, and other
documents, if they were recorded at all.
EME Homer City, 727 F.3d at 280 (citing Sierra Club v.
Johnson, 541 F.3d 1257, 1261 (11th Cir. 2008)).
There is an argument, therefore, that until the 1990 CAA
amendments, the preconstruction permits acted as de facto
operation permits, setting forth emissions and operational
limits established during the permitting application process.
See, e.g., 40 C.F.R. § 51.24(k) (1981) (requiring the owner or
operator of a modified plant to “demonstrate that allowable
emission increases from the proposed source or modification . .
. would not cause or contribute to air pollution . . . .”); id.
§ 51.24(m)(2) (obligating an owner or operator to “conduct
[post-construction] ambient monitoring . . . to determine the
effect emissions from the . . . modification may have, or are
having, on air quality in any area”); id. § 51.24(n)(2)(i) & 15
N.C. Admin Code 2D.0530(g) (see Doc. 450-1)(permitting North
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Carolina to require the preconstruction permit application to
contain “[a] description of the nature, location, design
capacity, and typical operating schedule of the source or
modification . . . .”).7
Because Duke I’s conclusion is not only defensible, but has
been shared by a number of other courts over the past decade,
and because the patchwork history of the CAA offers no
definitive answer, this court cannot find that the court in Duke
I made a clear error of law in ruling that Duke’s alleged
failure to obtain a PSD preconstruction permit constitutes a
continuing violation.
2.

Manifest Injustice

A few courts have defined the term “manifest injustice,”
which also appears in Rule 59(e), as “an error by the court that
is direct, obvious, and observable.” See Smith v. Waverly
Partners, LLC, No. 3:10–CV–28, 2011 WL 3564427, at *3 (W.D.N.C.
Aug. 12, 2011) (“In the context of a motion to reconsider,

7

The parties agree that this case is governed by the 1980
PSD rules incorporated in North Carolina’s State Implementation
Plan at 15 N.C. Admin. Code 2D.0530 at the time of the alleged
modifications. (Joint Response (Doc. 450) at 3.) The parties
also agree that the 1987 version of 40 C.F.R. § 51.166 (Doc.
450-3) subsequently incorporated into North Carolina’s SIP
contains no material differences from 40 C.F.R. § 51.24 (1981)
(Doc. 450-2). (Id.) The North Carolina SIP, in the form of a
mark-up showing the transition from section 51.24 to 51.166, is
set out in Doc. 450-1.
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manifest injustice is defined as ‘an error by the court that is
direct, obvious, and observable.’”) (quoting Register v. Cameron
& Barkley Co., 481 F. Supp. 2d 479, 480 n.1 (D.S.C. 2007)).
Courts have applied the “direct, obvious, and observable”
definition to a motion for reconsideration of interlocutory
orders.

E.g., Harper v. Norfolk S. Ry. Co., 992 F. Supp. 2d

795, 810 (S.D. Ohio 2014).

The language reflects that found in

Black’s Law Dictionary, which defines “manifest injustice,” in
relevant part, as “[a] direct, obvious, and observable error in
a trial court.”

Black’s Law Dictionary 1048 (9th ed. 2009).

For all practical purposes in this case, this definition mimics
the definition of “clear error,” discussed supra, so this court

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will apply the same analysis and reach the same conclusion.8
III. CONCLUSION
This court is well aware that “[t]he ultimate
responsibility of the federal courts, at all levels, is to reach
the correct judgment under law[,]” regardless of the
applicability of the law of the case doctrine. Am. Canoe, 326
F.3d at 515. However, as outlined above, this court does not
find that Judge Bullock’s previous ruling on this issue in Duke
I has been controverted by subsequent controlling law, that new
evidence has emerged to undercut its legitimacy, or that
maintaining it would be clear error or work a manifest injustice
on any parties to this case.

8

This court also notes that two of the four Courts of
Appeals’ cases cited by Duke in support of its motion were
decided prior to the parties’ 2011 filing of cross-motions for
summary judgment, and that Duke had ample opportunity to include
these cases and a motion for reconsideration in its briefing at
that time. See Sierra Club, 615 F.3d 1008 (8th Cir. 2010); Nat’l
Parks and Conservation Ass’n, 502 F.3d 1316 (11th Cir. 2007). As
the Government points out, the more recent cases in Duke’s
favor, EME Homer City, 727 F.3d 274 (3d Cir. 2013), and Midwest
Generation, LLC, 720 F.3d 644 (7th Cir. 2013), do not offer any
unique analysis of the statute of limitations question; instead,
they merely adopt the analysis of the prior Courts of Appeals’
cases. (See, e.g., Pls.’ Opp’n to Def.’s Mot. for Leave to File
Supplemental Mot. for Summ. J. (Doc. 461) at 14.) This court
fails to see how the issuance of two more non-controlling
opinions adopting Duke’s position creates a “manifest injustice”
that did not exist back in 2011, and further observes that
Duke’s delay in revitalizing this argument, while not evidence
of bad faith, undercuts any argument that Duke suffered manifest
injustice as a result of the Duke I ruling.
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The court has also been mindful that this obligation is
especially true in the context of subject matter jurisdiction
issues, “which call into question the very legitimacy of a
court’s adjudicatory authority.”

Id.

The Court considered

Duke’s subject matter jurisdiction arguments (Duke’s Mot. (Doc.
457) at 4-5) in note 1 above and in determining the application
of the three circumstances.

Therefore, this court will uphold

it as the law of the case and decline Duke’s invitation to

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reopen summary judgment for further briefing.9
IT IS HEREBY ORDERED that Defendant’s Motion for Leave to
File Supplemental Motion for Summary Judgment (Doc. 457) is
DENIED.
This the 17th day of September, 2014.

_______________________________________
United States District Judge

9

At the April 4, 2014 motions hearing, this court directed
the parties to file supplemental briefs addressing the
applicability of the so-called “waiver doctrine,” a corollary to
the law of the case doctrine that requires a party to raise
appealable issues at the first opportunity or risk losing the
ability to re-visit them. See, e.g., Med. Ctr. Pharmacy v.
Holder, 634 F.3d 830, 834 (5th Cir. 2011) (“[T]he waiver
doctrine . . . holds that an issue that could have been but was
not raised on appeal is forfeited and may not be revisited by
the district court on remand.”). Having reviewed the parties’
briefs, this court finds that Duke did not run afoul of the
waiver doctrine by failing to appeal the Duke I decision in 2003
because Duke, as the prevailing party on its motion for summary
judgment, did not have an affirmative duty to argue alternative
grounds for affirmance at the appeal. See Schering Corp. v. Ill.
Antibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996) (“We . . .
agree that the failure of an appellee to have raised all
possible alternative grounds for affirming the district court's
original decision, unlike an appellant's failure to raise all
possible grounds for reversal, should not operate as a waiver[,]
[because] [t]he urging of alternative grounds for affirmance is
a privilege rather than a duty.”); see also Crocker v. Piedmont
Aviation, Inc., 49 F.3d 735, 741 (D.C. Cir. 1995) (counseling
courts to apply “a degree of leniency in applying the waiver
rule to issues that could have been raised by appellees on
previous appeals”). Therefore, this court will not discuss the
waiver doctrine in any detail here.

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