MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

This declaratory judgment action is before the Court on the Motion to Alter or Amend Judgment or for Leave to File Second Amended Complaint ("Reconsideration Motion") [Doc. # 73] filed by Plaintiffs Total Gas & Power North America, Inc. ("Total"), Aaron Trent Hall ("Hall"), and Therese Nguyen Tran ("Tran") (collectively, "Plaintiffs"). Defendants Federal Energy Regulatory Commission ("FERC"), its Commissioners, and its Acting Chief Administrative Law Judge (collectively, "Defendants")1 filed a Response ("Reconsideration Response") [Doc. # 76], to which Plaintiffs replied ("Reconsideration Reply") [Doc. # 77]. Plaintiffs seek reconsideration of the Court's holdings in the Memorandum and Order issued on July 15, 2016 ("Opinion") [Doc. # 68] that this controversy is not justiciable, that this Court lacks subject matter jurisdiction under the Natural Gas Act ("NGA"),2 and that the Court, in its discretion, declines to entertain the declaratory judgment action.

After carefully considering the parties' briefing, oral argument, all matters of record, and the applicable legal authorities, the Court denies Plaintiffs' Reconsideration Motion.

I. LEGAL STANDARD

Rule 59(e) permits a litigant to file a motion to alter or amend a judgment.3 Reconsideration of a judgment is an "extraordinary remedy that should be used sparingly."4 A motion for reconsideration "is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment."5 Instead, Rule 59(e) serves the narrow purpose of allowing a party to bring errors or newly discovered evidence to the Court's attention.6

A litigant seeking relief under Rule 59(e) "must clearly establish either a manifest error of law or fact or must present newly discovered evidence."7 A Rule 59(e) motion "cannot be used to argue a case under a new legal theory."8 Moreover, "an unexcused failure to present evidence available at the time of summary judgment provides a valid basis for denying a subsequent motion for reconsideration."9

II. ANALYSIS

The Court assumes familiarity with the Opinion issued in this case on July 15, 2016, which explains the relevant facts and terminology. The Court first examines Plaintiffs' arguments in favor of altering or amending the Opinion. The Court concludes that these arguments lack merit. The Court then evaluates Plaintiffs' request to file a second amended complaint and holds that the proposed amendment would be futile.

Preliminarily, the Court rejects Plaintiffs' objection that the Court relied on arguments not asserted by Defendants. The Court is bound to scrutinize its subject matter jurisdiction, even if the issue must be raised sua sponte.10 Plaintiffs bear the burden of establishing subject matter jurisdiction.11 Plaintiffs have failed to do so. Further, Plaintiffs' additional arguments raised in their Reconsideration Motion are unavailing. As explained below, Plaintiffs have not met their burden under Rule 59(e) to demonstrate that the Court committed a "manifest error of law" in the Opinion.

A. Justiciability

1. The Court Did Not Misapply Calderon v. Ashmus

Plaintiffs argue that if the Court renders declaratory judgment in their favor on interpretation of NGA § 24,12 the "exclusive jurisdiction" provision, then the "entire controversy" will be resolved in this Court.13 Plaintiffs contend that Calderon v. Ashmus does not bar this suit.14 The Court is unpersuaded. Plaintiffs' Amended Complaint15 raises only jurisdictional and procedural issues regarding FERC's determination of claims of NGA violations by Plaintiffs Total, Hall, and Nguyen. Plaintiffs seek a ruling on where and how the merits will be litigated, but not on the merits themselves.16 Under Calderon, these issues are not the proper subject of a declaratory judgment because they merely "govern[] certain aspects of. . . pending or future suits."17

The Calderon defect in Plaintiffs' claims further underscores the Court's previous conclusion that Plaintiffs' requested declaratory judgment is a request for an advisory opinion.18 FERC has not initiated a federal court proceeding against Plaintiffs on the merits of the charges of NGA violations or for enforcement of a civil penalty order. Nor does Plaintiffs' requested judgment immediately obligate FERC to litigate in this Court.19 Plaintiffs' claims merely seek rulings on whether this Court would have exclusive jurisdiction at a later point in the civil penalty dispute and on challenges to anticipated administrative procedures. These rulings would, at best, result in a free-standing final judgment on jurisdiction or anticipatory rulings on constitutional and statutory questions.20 Such rulings would be incompatible with the classification of jurisdictional and procedural questions as interlocutory issues. Calderon prevents this result by restricting use of the Declaratory Judgment Act to issues that resolve a full controversy.

2. Plaintiffs' Claims Are Not Ripe

Plaintiffs argue that the Amended Complaint's request for a declaration on the meaning of NGA § 24 is ripe because the challenged administrative proceeding is underway.21 The Court held that the claim regarding NGA § 24 was not ripe because the relief Plaintiffs request is largely anticipatory, and success in this suit would not legally require FERC to alter its administrative procedures.22 Plaintiffs explain they are incurring significant litigation expenses. Plaintiffs contend a declaratory judgment adopting their interpretation of NGA § 24 would encourage FERC to shorten the administrative proceeding and would assist Plaintiffs in formulating responses in that proceeding.23 Even crediting this argument, Fifth Circuit precedent is clear that a court does not have jurisdiction merely to render a declaratory judgment in order to simplify or avoid future litigation.24

Fundamentally, Plaintiffs seek an advance ruling on a jurisdictional defense and other procedural matters that, in their view, will bolster their position in the agency proceedings.25 This Court does not have jurisdiction to decide issues for that purpose.

B. Jurisdiction

Plaintiffs continue to ignore the applicability of the Thunder Basin26 framework. As the Supreme Court reaffirmed in Elgin,27 the Court's task is merely to determine whether there is a "fairly discernible intent" to assign jurisdiction to the agency by examining the statute's text, structure, and purpose.28 To avoid their burden of establishing subject matter jurisdiction under the NGA, Plaintiffs posit that NGA § 24 creates district court jurisdiction over proceedings imposing civil penalties under the NGA and then argue the burden falls on Defendants to show a repeal of that provision. On reconsideration, Plaintiffs again fail to establish their starting premise because they rely on conclusory assertions regarding the NGA that lack basis in precedent and historical practice.

1. Statutes with Comparable Jurisdictional Provisions

Plaintiffs object to the Court's reliance on the absence of precedent supporting their interpretation of NGA § 24 because, according to Plaintiffs, there have been "few opportunities for courts to address the question presented here."29 This argument is unavailing. Plaintiffs overlook the existing precedent regarding this genre of jurisdictional provisions, which precedent explains that these provisions had a purpose different from that urged by Plaintiffs. As explained in the Court's Opinion, these statutes govern the relationship between federal and state courts.30

Plaintiffs rely heavily on the presence in the Securities Exchange Act of 1934 of both an "exclusive jurisdiction" provision, § 27(a),31 and a provision authorizing imposition of civil penalties in administrative proceedings, § 21B.32 Plaintiffs cite no authority that expresses the view that Exchange Act § 21B makes an exception to the district courts' "exclusive jurisdiction" under § 27 and the Court has found none.33 As exemplified by Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning,34 the case law interpreting Exchange Act § 27 addresses the relationship between state and federal courts.35

The Second Circuit's decision in Touche Ross & Co. v. SEC,36 cited by Plaintiffs, is not to the contrary. The Second Circuit merely rejected an argument based on the Exchange Act § 27 as irrelevant and its observations regarding district court jurisdiction are dicta.37 Even read broadly, Touche Ross is not probative of whether "exclusive jurisdiction of violations" applies to agency efforts to address violations through means other than injunctive relief.38 Tellingly, Plaintiffs do not rely on Touche Ross directly, but rather on descriptions of the decision in individual opinions issued in a highly divided decision by the D.C. Circuit.39 The Exchange Act provides insufficient support for the broad reading of NGA § 24 Plaintiffs advance in this action.

2. History of the NGA

Plaintiffs state, "before 2005, FERC complied with the . . . criminal penalty, injunctive relief, and exclusive jurisdiction provisions of the NGA (§§ 20, [21], and 24) by ceding jurisdiction over penalties for violations to federal district courts."40 Plaintiffs cite no pre-2005 district court cases under the NGA where FERC (or its predecessor, the Federal Power Commission ("FPC")) sought "penalties for violations," and the Court is unaware of any. This dearth of examples likely is because the Commission did not have authority to seek civil penalties under the NGA prior to 2005.41

In contrast, the NGA specifically delineates district court jurisdiction over actions for injunctive relief and criminal prosecutions.42 There is no similarly specific statement regarding jurisdiction over civil penalties. Further, the Commission has a longstanding practice of finding and remedying violations of the NGA through administrative proceedings.

Plaintiffs' attempts to distinguish the Commission's historical practice of finding violations of pre-2005 provisions of the NGA are unavailing. In support of their interpretation of NGA § 22 (the provision added to the NGA in 2005 by the EPAct43 authorizing civil penalties44) and § 24, Plaintiffs argued that, historically, only district courts had the power to find violations and therefore the Commission lacks jurisdiction to make the predicate finding of a violation necessary to assess a civil penalty under NGA § 22. In disagreeing, the Court found instructive Fifth Circuit cases affirming Commission findings of violations of the NGA provisions governing ratemaking (NGA § 4), abandonment (NGA § 7(b)), and certification of certain activities (NGA § 7(c)).45

To distinguish these Fifth Circuit cases, Plaintiffs assert that "[i]t would make no sense for parties to challenge FERC's authority to adjudicate a statutory violation in situations where proof of such a violation is neither necessary nor sufficient to the lawfulness of FERC's adjudication."46 As explained below, this contention ignores the fact that the Commission in these cases was not merely reviewing proposed new rates, determining whether to approve abandonment, or issuing a certificate of public convenience. In each instance, the Commission acted expressly to remedy retrospectively violations of NGA provisions and FERC's procedures governing those issues. The Court therefore determined that there was a "fairly discernible intent" to expand the Commission's "toolbox" by adding authority to assess civil penalties. The Court declines to reconsider its interpretation of those cases for the following reasons.

Ratemaking.— Plaintiffs contend that the Commission has broad authority to order refund payments under the portion of NGA § 4(e). Plaintiffs quote language authorizing the Commission "to hold `a hearing concerning the lawfulness of' any `rate' charged by the company and `to order such natural-gas company to refund, with interest, the portion of' the `increased rates or charges by its decision found not justified.'"47 Nothing in NGA § 4, including § 4(e) explicitly grants the Commission jurisdiction to find the existence of a violation of the NGA.

In Transcontinental Gas Pipe Line v. FERC, the Fifth Circuit determined that the Commission had acted within its "equitable powers."48 The Commission denied a natural gas company an opportunity to recoup certain losses the company had incurred because the company had violated the NGA. The Fifth Circuit held the denial was an appropriate remedy based on the Commission's findings that the company had violated NGA §§ 4(b), 4(d), and 7. Under Plaintiffs' interpretation of NGA § 24, the language of NGA § 4 would not be sufficient to create an exception to the "exclusive jurisdiction" provision in NGA § 24. Applying Plaintiffs' interpretation, the Commission should have had to resort to a district court for an adjudication of the underlying violations before it could base a remedy on them. Transcontinental Gas Pipe Line is therefore evidence that NGA § 24 has not been interpreted as broadly as Plaintiffs contend.

Abandonment.— Plaintiffs argue that the Commission order affirmed in Mesa Petroleum v. FPC49 is distinguishable because it was based on the Commission's "adjudicatory jurisdiction" over abandonment of natural gas facilities. NGA § 7(b) only explicitly authorizes the Commission to grant "permission and approval . . . after a due hearing." NGA § 7(b) only expressly references findings regarding the depletion of natural gas "to the extent that the continuance of service is unwarranted" and regarding whether "present or future public convenience or necessity permit such abandonment." Nothing in NGA § 7(b) explicitly authorizes the Commission to find that a "violation" occurred. Under Plaintiffs' view of "exclusive jurisdiction" under NGA § 24, therefore, the language of NGA § 7(b) would not support a "carve out" for the issue of whether the abandonment prior to the institution of an NGA § 7(b) proceeding violates the NGA and warrants retroactive relief. Nevertheless, the Fifth Circuit has affirmed Commission orders imposing remedies for that violation in Mesa Petroleum and Coastal Oil & Gas.50

Certification.— Plaintiffs argue that NGA § 7(c) provides authority to adjudicate because it "authorizes FERC to hold a hearing to grant or deny natural gas companies certificates to engage in certain activities related to the sale of natural gas."51 Plaintiffs rely on the Commission's power under NGA § 7(e) "to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require." Nowhere, however, do NGA § 7(c) or § 7(e) explicitly state that the Commission has jurisdiction to remedy violations of the terms of the certificate. Such a violation appears to be within Plaintiffs' interpretation of NGA § 24's term "exclusive jurisdiction of violations of this chapter, or the rules, regulations, and orders thereunder." In Cox v. FERC,52 however, the Fifth Circuit affirmed the Commission's finding that certain parties had "sold uncertificated 20% gas in interstate commerce in violation of the Natural Gas Act" and remedy of "return[ing] diverted gas in kind to the interstate market." Plaintiffs maintain that the Commission was acting within its certification authority when it reopened a certification hearing to impose this remedy. Plaintiffs fail to explain how, if their expansive interpretation of NGA § 24 is correct, remedying a violation or compelling compliance with NGA § 7(c) or the terms of a certificate issued thereunder is within the Commission's jurisdiction.

Conclusion on Historical Practice.— In sum, Congress did not expressly create an exception to NGA § 24's "exclusive jurisdiction" language in NGA §§ 4 and 7. Nevertheless, the Fifth Circuit repeatedly has affirmed Commission findings that natural gas companies "violated" the NGA. The Court of Appeals has approved equitable remedies to rectify those violations. There is no indication that the courts perceived NGA § 24 to have any bearing on the scope of the Commission's authority to find these violations. The Commission's historical practice and the Courts of Appeals' endorsement directly contradicts Plaintiffs' argument that NGA § 24 requires Congress explicitly to grant authority to the Commission to determine the existence of "violations" of the NGA.

Additionally, Plaintiffs' interpretation of NGA § 24 would create an inefficient procedure for remedying violations of NGA §§ 4 and 7. It is clear that the Commission may now assess civil penalties for violations of these sections of the NGA. Even though the Commission has established authority to determine the existence of violations of these provisions and to impose appropriate equitable remedies, Plaintiffs request that this Court hold that the Commission would be required to institute a separate proceeding in district court to assess civil penalties for the same violations. It is unlikely that Congress intended such a counterintuitive outcome. Rather, it is "fairly discernible" that NGA § 22 should be read as an expansion of the Commission's remedial authority within the administrative process. The text, structure, and purpose of the NGA, read as a whole, demonstrate a "fairly discernible intent" to enhance, not avoid, the administrative process.

3. Other Arguments Regarding Text, Structure, and Purpose of the NGA

Plaintiffs object to certain portions of the Court's interpretation of the text, structure, and purpose of the NGA.53 The Court finds these objections unpersuasive.

Lack of Express Authority to Adjudicate.— Plaintiffs contend that the Court's comparison of NGA § 22 to Federal Deposit Insurance Act ("FDIA") § 8(i)54 was error because the FDIA does not contain an "exclusive jurisdiction" provision. This argument misconstrues the purpose of the comparison to the FDIA's civil penalty provision. A fundamental premise of Plaintiffs' interpretation of the NGA is that the phrase in NGA § 22 that "[t]he penalty shall be assessed by the Commission after notice and opportunity for public hearing" does not grant the Commission jurisdiction to determine whether the respondent violated the NGA. Plaintiffs claim the dispute at bar presents the question:

Although a finding of a violation is a predicate to imposition of a penalty under FDIA § 8(i), that provision, like NGA § 22, simply states that the penalty will be "assessed" by the agency.56 In the FDIA, authority to "assess" includes jurisdiction to "adjudicate."57 Plaintiffs' suggest that the Court must determine "the forum for adjudication after the agency has assessed a proposed penalty under NGA § 22."58 As in the FDIA, there is no indication in the NGA that the forum for adjudication is anything other than the forum in which the penalty is assessed. Plaintiffs have presented no authority supporting a narrower interpretation of the term "assess."59

NGA §§ 14 and 16.— Plaintiffs characterize the Court's analysis of NGA §§ 1460 and 1661 as a holding that "FERC's authority to `administer the entire process for assessment of civil penalties' could be inferred from its general investigatory and regulatory authority under NGA §§ 14 and 16."62 This improperly oversimplifies the Court's ruling. Instead, these provisions show that the NGA contained a framework for administrative investigation, determination, and remediation of violations. The Court found a "fairly discernible intent" to add the civil penalty process to an existing administrative structure by granting the Commission authority to "assess" penalties for violations of the statute the Commission has administered broadly for decades since its enactment.63 There is no basis to alter this conclusion.

Relevance of the Addition of NGA § 20(d).— Plaintiffs contest the Court's reasoning that the addition of NGA § 20(d)64 through the EPAct is evidence that Congress was aware of the district court's jurisdiction but chose not to invoke it for NGA § 22. Plaintiffs maintain that NGA § 20(d) "used the existing framework to expand the district courts' injunctive authority," but "there was no existing NGA civil penalty framework into which Congress might incorporate the civil penalty portion of the 2005 amendments."65 This argument ignores the structure of comparable provisions in the Exchange Act.66

When Congress created district court jurisdiction to impose civil penalties for violations of the Exchange Act, it did so by amending Exchange Act § 21(d),67 which is functionally identical to NGA § 20. Both Exchange Act § 21(d) and NGA § 20 authorize injunctive relief to enjoin acts and practices that constitute violations of the Act68 and to prohibit certain persons from serving as officers and directors.69 Had Congress intended to assign the NGA civil penalty process to the district courts as in the Exchange Act, Congress could have done so by amending NGA § 20. Contrary to Plaintiffs' assertion, NGA § 20 provided an "existing framework" for district court jurisdiction, and Congress could have added NGA civil penalties within that structure, parallel to the addition of civil penalties provisions to the Exchange Act. Congress, however, did not do so. For NGA civil penalties, Congress created a stand-alone provision. The similarity between NGA § 20(d) and Exchange Act § 21(d)(2) and the dissimilarity between NGA § 22 and Exchange Act § 21(d)(3) are strong evidence that, in 2005, Congress did not intend NGA § 22 civil penalties to be added to district courts' jurisdiction.

Venue.— Plaintiffs argue that it was unnecessary for Congress to identify permissible venues for civil penalty actions because "NGA § 24 already specifies venue for enforcement actions." Plaintiffs apparently refer to NGA § 24's sentence on venue for actions to "enforce any liability or duty created" by the NGA, as the other § 24 venue provision pertains specifically to criminal prosecutions.70 The Exchange Act is again informative. If a defendant fails to pay a civil penalty that has been determined by a district court in an action by the SEC, the SEC may refer the matter to the Attorney General, who may bring a separate suit to enforce the court's order.71 This suit to collect is considered an action "to enforce a liability or duty" for purposes of Exchange Act § 27's jurisdiction and venue provisions.72 This is consistent with the Court's holding that an "enforcement action" under the NGA would be to collect a civil penalty previously assessed by the Commission in a final order, not the adjudication of the amount of the penalty itself. There is no venue provision in the NGA to govern the latter, which is the type of civil penalty proceeding Plaintiffs argue Congress intended to create.73

Type of Proceeding.— Plaintiffs contend that the Court erred in relying on the absence in the NGA of any description of the district court proceeding that would occur under Plaintiffs' interpretation of NGA § 24. Plaintiffs suggest that civil penalties under the NGA would be imposed using procedures analogous to those specified by the FPA. The FPA contains detailed provisions creating two alternative tracks for assessment and collection of civil penalties. None of these procedures are described in the NGA. The Court previously considered and rejected the argument that it should imply the FPA procedures into the NGA.74 Nor does the FPA support Plaintiffs' contention that the default forum under the NGA is the district courts.75

Purpose.— Plaintiffs contend that the purposes of the EPAct "make[] it all the more implausible that Congress would sharply deviate from decades of law and practice governing FERC enforcement actions without so much as a discussion of the change."76 Plaintiffs again rely on their faulty premise of "historical practice." There is no evidence of the "decades of law and practice" they reference.77

Constitutional Avoidance.— Plaintiffs argue that the Court should favor their interpretation of NGA § 24 because it avoids the constitutional issues that form the basis of their claims for declaratory relief under the Appointments Clause and the Fifth and Seventh Amendments.78 Plaintiffs continue to rely on speculative assertions about the alleged lack of fairness of the FERC proceedings and Plaintiffs' request for a jury trial. Tellingly, Plaintiffs do not here address the Court's conclusion that these claims were unripe.79

Application of the canon of constitutional avoidance is premature. Typically, the canon comes into play when constitutional issues arise that are currently justiciable. Plaintiffs' constitutional claims may be addressed if the procedural violations Plaintiffs anticipate occur in the FERC proceeding and if Plaintiffs are unsuccessful on the merits.

Further, Plaintiffs' identification of potential defects in certain aspects of FERC's procedures is not a reason to interpret NGA §§ 22 and 24 to eliminate the agency's jurisdiction entirely. Plaintiffs do not argue that the purported Appointments Clause and Fifth Amendment defects arise directly out of the grant of FERC jurisdiction; rather, they complain of specific procedures the Commission has implemented in the exercise of that jurisdiction. Similarly, as explained in the Opinion, even Plaintiffs' interpretation of NGA § 24 does not guarantee them a jury trial.80 NGA § 24 is not the source of the purported constitutional infirmities. The dramatic restructuring of the civil penalty process Plaintiffs' interpretation of NGA § 24 would require is an overbroad and premature solution to discrete potential procedural issues.

Conclusion on Thunder Basin Analysis.— Plaintiffs have not established grounds for alteration of the Court's conclusions in its Opinion that it lacks jurisdiction over the claims asserted.

C. Discretionary Analysis Applicable to Action Seeking Solely Declaratory Relief

Plaintiffs argue that the Court's holding that it would exercise its discretion to decline to hear their declaratory judgment action was not a true alternative holding.81 Not only is this contention contrary to the Court's statements reiterated several times, but it is contrary to law. The Supreme Court held in Wycoff that an agency should be afforded an opportunity to evaluate its jurisdiction, subject to review by the appropriate court of appeals.82 Further, the Trejo factors83 counsel against this Court preempting the Commission's decision on its own jurisdiction where the same jurisdictional question has been presented to and is currently pending before that tribunal. Plaintiffs cite no cases in which the Declaratory Judgment Act was successfully employed to deprive an agency of authority while an adjudicatory proceeding was pending, much less a case in which a court abused its discretion by declining to do so.

It is inappropriate for the Court to insert itself prematurely into the dispute between FERC and Plaintiffs. If, as Plaintiffs contend, FERC's case is so weak that no one but FERC itself would believe it,84 the "substantial evidence" review in a court of appeals should be protection from overreach by the agency.85 In contrast, Plaintiffs' proposed court involvement in pending administrative processes will exacerbate the complexity of those proceedings. The Court, for these reasons, and those in the Opinion, continues to exercise its discretion to decline to entertain Plaintiffs' declaratory judgment action.

D. Motion for Leave to Amend

Plaintiffs request leave to amend their Complaint again to attempt to cure the justiciability defect under Calderon.86 Plaintiffs propose to add a request for a declaration that they did not violate the market manipulation provisions of the NGA. According to Plaintiffs, the addition of this claim will bring the entire dispute to this Court. For the following reasons, the Court denies Plaintiffs leave to amend.

Plaintiffs contend that they did not have the opportunity to address Calderon because Defendants did not raise that case in their briefing. Calderon addresses an issue of subject matter jurisdiction, which the Court must police sua sponte. In Calderon, the Supreme Court raised the subject matter jurisdiction issue even though it was not among the questions on which certiorari was granted.87 Further, the Court deems Plaintiffs to have been on notice of Calderon because its holding was restated in MedImmune, a case Plaintiffs repeatedly cited.

Plaintiffs' request to amend is, in any event, futile in light of the Court's other rulings. Nothing in Federal Rule of Civil Procedure 15 requires a court to exercise its discretion to permit amendment to cure a jurisdictional defect where independent grounds exist for dismissal.

Further, even if this Court had subject matter jurisdiction over Plaintiffs' claims, the Court concludes it is inappropriate to rule on declaratory judgment claims pursued by Plaintiffs in connection with their pending agency proceeding. Investigations under the NGA are often sensitive, complex, and lengthy.88 FERC's procedures for these investigations depend on interaction between the respondent and the agency. If a respondent had the option of running into court for a declaratory judgment about agency procedures or the merits of the agency's enforcement staff's preliminary contentions, the parties would be entangled in two-front litigation. Congress provided FERC the discretion to decide whether and how to investigate and, if necessary, to prosecute an action for civil penalties. Plaintiffs' proposed second amendment to its Complaint is futile and leave to amend is denied.

III. CONCLUSION

Plaintiffs' interpretation of NGA § 24 may have a superficial appeal. However, once evaluated within the framework required by the Supreme Court's decisions in Calderon, Thunder Basin, Free Enterprise Fund, and Elgin, the jurisdictional infirmities of Plaintiffs' declaratory judgment action become apparent. Plaintiffs' Reconsideration Motion ignores this applicable framework. Furthermore, the Court exercises its discretion to decline to rule on Plaintiffs' declaratory judgment claims. In sum, Plaintiffs' attempt to read one phrase in NGA § 24 in isolation is rejected. The Court declines to alter or amend the Opinion. It is therefore

ORDERED that Plaintiffs Total Gas & Power North America, Inc., Aaron Trent Hall, and Therese Nguyen Tran's Motion to Alter or Amend Judgment or for Leave to File Second Amended Complaint [Doc. # 73] is DENIED.