Filed: Apr. 01, 2009
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 1, 2009 No. 08-30251 Charles R. Fulbruge III Consolidated With Clerk No. 08-30479 NATIONALIST MOVEMENT Plaintiff - Appellant v. TOWN OF JENA; MURPHY MCMILLIN, individually and as Mayor of the Town of Jena Defendants - Appellees Appeals from the United States District Court for the Western District of Louisiana USDC No. 1:07-CV-2168 Before REAVLEY, BARKSDALE, and GARZA, Circuit Jud
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 1, 2009 No. 08-30251 Charles R. Fulbruge III Consolidated With Clerk No. 08-30479 NATIONALIST MOVEMENT Plaintiff - Appellant v. TOWN OF JENA; MURPHY MCMILLIN, individually and as Mayor of the Town of Jena Defendants - Appellees Appeals from the United States District Court for the Western District of Louisiana USDC No. 1:07-CV-2168 Before REAVLEY, BARKSDALE, and GARZA, Circuit Judg..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 1, 2009
No. 08-30251 Charles R. Fulbruge III
Consolidated With Clerk
No. 08-30479
NATIONALIST MOVEMENT
Plaintiff - Appellant
v.
TOWN OF JENA; MURPHY MCMILLIN, individually and as Mayor of the
Town of Jena
Defendants - Appellees
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 1:07-CV-2168
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Nationalist Movement argues that Defendant-Appellee
Town of Jena (“Jena”) violated its members’ First, Second, and Fourteenth
Amendment rights by requiring it to comply with a town ordinance and permit
application in order to hold a protest parade. The parties negotiated a consent
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-30251
judgment, which the district court issued along with a statement explaining the
consent judgment. Nationalist Movement now alleges error in the district
court’s explanation of the consent judgment and the denial of its two motions for
reconsideration, motion for leave to file affidavits, and motion to extend its
attorney’s pro hac vice admission. For the following reasons, we affirm.
I
Nationalist Movement sought to hold an event called “Jena Justice Day”
at the La Salle Parish Courthouse in Jena, Louisiana, on January 21, 2008. This
event was planned to include a two-mile parade to protest the “Jena Six,” a
group of black teenagers awaiting trial for the beating of a white teenager.
Nationalist Movement believes that the Jena Six have received preferential
treatment from the town of Jena. Jena attempted to require Nationalist
Movement to comply with Town of Jena Ordinance #146 and the “Permit
Application for Procession, March, Parade or Demonstration,” which prohibited
bearing firearms.1 Refusing to comply, Nationalist Movement brought this suit
for injunctive, declaratory, and other relief for alleged violations of its First,
Second, and Fourteenth Amendment rights. The allegations in the complaint
are limited to the unconstitutionality of the ordinance and the permit application
and do not allege any specific incidents of wrongdoing by Jena officials.
At pretrial conferences, Nationalist Movement and Jena negotiated a
consent order nullifying the ordinance and permit application requirement and
awarding Nationalist Movement nominal damages and attorney’s fees. After
verifying that the parties had agreed to the order and that no issues remained
1
The permit application included the following condition for consideration:
I have been provided a copy of the Town of Jena’s ordinance number 146 (section 130)
regarding processions, marches, parades and demonstrations, have read the ordinance and
understand that I will be liable for all damage to property or persons which may arise out of
or in connection with the aforementioned event. The carrying of firearms is prohibited during
permitted marches.
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No. 08-30251
between them, the district court issued the order as a “Consent Order and Final
Judgment.” 2 Three days later, the district court issued a statement titled
“Reasons for Consent Order and Final Judgment” (the “Reasons”) clarifying that:
[N]othing in this judgment shall be deemed to recognize any request
by plaintiff or any demonstration or parade participant to carry
weapons of any kind. Likewise, neither does the judgment affect the
police power of the town of Jena and State of Louisiana, which
includes the right and duty to protect and promote the public safety.
The Reasons also clarified that since all issues were resolved by the consent
judgment, Nationalist Movement’s firearms claim was mooted and dismissed by
the terms of the judgment.
Subsequently, Nationalist Movement moved to strike Reasons as an
unconstitutional advisory opinion. The district court denied this motion.
Nationalist Movement also moved the court to reconsider the Reasons based on
the allegation that two individuals, David Dupre and David Dupre, Jr., were
prohibited from bearing firearms at the parade, and also moved for leave to
submit the Dupres’ affidavits. The district court denied both motions based on
2
The consent judgment mandated the following:
1. Ordinance # 146, of the Town of Jena will be forthwith repealed as violative of the First and
Fourteenth Amendments as written.
2. The “Permit Application for Procession, March, Parade or Demonstration Permit
Application,” pursuant to said ordinance, is withdrawn, as unenforceable and violative of the
First and Fourteenth Amendments as written.
3. Defendant will not interfere with Plaintiff’s exercise of its First Amendment rights on
January 21, 2008, in the Town of Jena.
4. Plaintiff, The Nationalist Movement, is the prevailing party in this litigation.
5. Defendants will pay attorney fees and costs of this litigation to Plaintiff as provided by law
and as decided by the Court. Plaintiff will submit its request therefor to the Court and
Defendants will respond.
6. There are no further issues between the parties. The Plaintiff is awarded $1.00 (one dollar)
in nominal damages. Neither party shall receive any other damages or injunctive relief.
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No. 08-30251
the fact that the Dupres were not members of Nationalist Movement and thus
were not parties to the litigation or affected by the consent judgment. Next,
Nationalist Movement filed a second motion to reconsider, seeking to have the
consent order vacated or amended for the same reasons as the earlier motions.
The district court denied this motion as an attempt to rehash previously resolved
issues and to create a new case post-judgment. The district court also partially
denied Nationalist Movement’s motion to extend its attorney’s pro hac vice
admission. Specifically, the district court limited the attorney’s continued
admission pro hac vice to attorney’s fee issues only and reaffirmed that the sole
issue remaining in the litigation was attorney’s fees. This appeal followed.
II
A
Nationalist Movement does not allege error in the consent judgment itself,
having conceded that it agreed to the consent judgment and verified to the
district court that the consent judgment resolved all issues in the litigation.
Instead, Nationalist Movement alleges that the district court abused its
discretion when it issued the Reasons because the Reasons altered the consent
judgment.3 Nationalist Movement characterizes the Reasons as an “ex parte
attempt to amend the order” resulting in a post-judgment modification, which
it claims violated its right to due process and became an unconstitutional
advisory opinion. Modifications of consent judgments are reviewed for abuse of
discretion. Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, 858 (5th Cir. 2000).
3
Though a question exists as to whether we have jurisdiction to hear an appeal from
a statement of reasons explaining a consent judgment, we need not answer this question here.
Because Nationalist Movement argues that the district court improperly amended the consent
judgment, our jurisdiction is proper. See Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, 858 (5th
Cir. 2000) (reviewing a claim that the district improperly amended a consent judgment for
abuse of discretion).
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No. 08-30251
Nationalist Movement’s argument fails because the district court was
within its authority to issue the reasons and because the reasons did not alter
the mutually agreed-upon consent order. We have held that:
Because a consent judgment has a continuing [e]ffect on the rights
of litigants, courts are required to ascertain whether the parties[’]
agreement represents a reasonable factual and legal determination
based on the facts of the record[.] A consent decree must arise from
the pleaded case and further the objectives of the law upon which
the complaint is based. When litigants reach a settlement that also
[a]ffects third parties, the court must be satisfied that the effect on
them is neither unreasonable nor proscribed.
Id. (internal citations and quotation marks omitted). Accordingly, district
courts have a duty to ensure that a consent judgment is a reasonable
determination based on the record, arises from the pleaded case, and furthers
the objectives of the law upon which the complaint is based.
Here, the district court explained that it issued the reasons to clarify the
fact that all issues between the parties were resolved and to explain how the
consent judgment dovetailed with the firearms claim raised in the complaint.
Although the district court received assurances from both sides that the consent
judgment disposed of all issues, the district court was concerned that the
consent judgment might be unclear since it did not mention the Second
Amendment claim despite the fact that this claim had been a major part of the
parties’ dispute. Accordingly, the purpose of the stated reasons was to “explain
the seeming inconsistency regarding the Second Amendment issues raised by the
plaintiff throughout the contested course of this litigation and the consent
judgment’s total silence on those issues.” The reasons were necessary, according
to the district court, to clarify how the consent judgment arose from the pleaded
case and furthered the objectives of the various laws that Nationalist Movement
cited in its complaint.
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No. 08-30251
Moreover, it is clear that the stated reasons did not alter the consent
judgment. The consent judgment repealed Ordinance #146 as violative of the
First and Fourteenth Amendments, withdrew the “Permit Application for
Procession, March, Parade or Demonstration” as unenforceable and violative of
the First and Fourteenth Amendments, and promised that Jena would not
interfere with Nationalist Movement’s exercise of its First Amendment rights on
January 21, 2008 (the date of the parade). The district court’s explanation that
the consent judgment did not directly address the Second Amendment claim was
simply a true statement regarding what was not in the judgment—it did not
purport to add to, subtract from, or alter the judgment in any way. Nationalist
Movement cannot claim error in the district court’s dismissal of their firearms
claim since they verified, as is required to obtain a consent judgment, that all
issues were resolved by the order. Finally, the district court’s statement that
nothing in the judgment recognized any rights to bear arms at the parade or
interfered with Jena’s police powers also merely clarified a fact apparent from
the consent order itself, which is silent as to these issues. We therefore find no
abuse of discretion in the district court’s stated reasons for the consent
judgment.
B
Nationalist Movement’s remaining claims allege error in the district
court’s denials of its motions to reconsider, motion for leave to file affidavits, and
motion to extend its attorney’s pro hac vice admission. Nationalist Movement
filed the two motions for reconsideration and a motion for leave to file affidavits
in an effort to litigate its allegation that “Defendants prohibited two would-be
paraders, David Dupre and David Dupre, Jr., from bearing firearms, therein,
namely a rifle and a shotgun, or from even removing the same from their
vehicle.” This allegation was not in the pleadings and was not addressed in any
way in the consent judgment. The district court denied these motions because
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No. 08-30251
the Dupres were not members of Nationalist Movement and accordingly were
not covered by the consent judgment.
We review a district court’s denial of a F ED. R. C IV. P. 59(e) motion for
abuse of discretion. Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 566
(5th Cir. 2003). Motions for reconsideration are made pursuant to Rule 59(e),
which allows a motion to alter or amend a judgment. See Patin v. Allied Signal,
Inc.,
77 F.3d 782, 785 n.1 (5th Cir. 1996). The district court has considerable
discretion when deciding a Rule 59(e) motion, and the narrow purpose of a
motion for reconsideration is to allow a party to correct manifest errors of law or
fact or present newly discovered evidence. See Waltman v. Int’l Paper Co.,
875
F.2d 468, 473 (5th Cir. 1989). Motions for reconsideration should not be used to
raise arguments that could have been made before the entry of judgment or to
re-urge matters that have already been advanced by a party. See
id. at 473-74.
Here, the problem is not merely that the materials advanced in the
motions for reconsideration could or should have been brought earlier—the
problem is that the issues raised are not properly connected to the underlying
proceedings. All of the claims raised in the motions for reconsideration amount
to entirely new allegations that are outside the scope of the pleadings and
beyond the reach of the consent judgment. As indicated in the evidence
proffered by Nationalist Movement to support its allegations, the Dupres were
not members of Nationalist Movement. Therefore, they were not covered by the
consent judgment’s mandate that “Defendant will not interfere with Plaintiff’s
exercise of its First Amendment rights on January 21, 2008.” The pleadings did
not allege any acts of wrongdoing by Jena officials, so even if the Dupres were
members of Nationalist Movement this alleged conduct would simply not fall
under the pleaded facts of the complaint. Moreover, the consent judgment on its
face is Second Amendment neutral. While it repeals the permit application
requirement including the prohibition of firearms, the consent judgment makes
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No. 08-30251
absolutely no statement regarding an individual’s right to bear arms at parades
in Jena. Accordingly, the district court did not abuse its discretion in denying
the motions to reconsider because the facts alleged involve non-parties and are
outside the scope of the pleadings.
Furthermore, Nationalist Movement has failed to allege an error in the
district court’s partial denial of Nationalist Movement’s motion to extend its
attorney’s pro hac vice admission. In partially denying the motion, the district
court limited the extension only to the attorney’s ongoing claim for attorney’s
fees. Notably, this ruling was made in May 2008—three months after the
district court had denied the second motion for reconsideration and affirmed that
“ALL matters in this case less and except for the claim for attorney’s fees and
costs . . . are concluded.” Since there are no ongoing matters in the district court
except for attorney’s fees, the district court did not err in limiting the attorney’s
pro hac vice admission to this issue.
III
For the foregoing reasons, we AFFIRM.
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