UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

STATE OF TEXAS; AMERICAN 

ASSOCIATION OF PRO-LIFE 

OBSTETRICIANS & 

GYNECOLOGISTS; and CHRISTIAN 

MEDICAL & DENTAL 

ASSOCIATIONS, 

Plaintiffs, 

v.

XAVIER BECERRA, in his official 

capacity as Secretary of Health and Human 

Services; UNITED STATES 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES; CENTERS FOR 

MEDICARE & MEDICAID SERVICES 

(CMS); KAREN L. TRITZ, in her official 

capacity as Director of the Survey and 

Operations Group for CMS; DAVID R. 

WRIGHT, in his official capacity as 

Director of the Quality Safety and 

Oversight Group for CMS, 

Defendants. 

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CIVIL ACTION NO. 5:22-CV-00185

PLAINTIFFS’ RESPONSE TO COURT’S ORDER 

REQUIRING JURISDICTIONAL BRIEFING

Defendants filed a “Motion for Clarification” of the Court’s order granting Plaintiffs’ 

Motion for Preliminary Injunction. Dkt. #86. The Court has not ruled on the Motion for 

Clarification. Defendants have since filed a notice of appeal. Dkt. #94. The Court has requested 

briefing on whether it still has jurisdiction to consider Defendants’ Motion for Clarification. Dkt. 

#95. The answer to this question appears to turn on whether Defendants’ Motion for Clarification,

which cites no federal rule, should be treated as a motion to alter or amend the judgment under 

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Plaintiffs’ Response to the Court’s Order Requiring Jurisdictional Briefing 2 

Rule 59(e). 

While there is conflicting authority on this question, here, the best answeris the Court lacks

jurisdiction to rule on Defendants’ Motion for Clarification. Motions to reconsider interlocutory 

orders are appropriately treated as motions under Rule 54(b) rather than under Rule 59(e). 

Moreover, Defendants’ Motion for Clarification does not invoke any of the bases for relief under 

Rule 59(e). 

A. This Court lacks jurisdiction to rule on Defendants’ Motion for Clarification. 

As the Court noted in its Order, the filing of a notice of appeal “divests the district court 

of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer 

Disc. Co., 459 U.S. 56, 58 (1982). But as the Court notes, a notice of appeal only becomes effective 

after the district court disposes of any timely filed motions listed in Federal Rule of Appellate 

Procedure 4(a)(4)(A). See Fed. R. App. P. 4(a)(4)(B)(i). Motions which would prevent the notice 

of appeal from becoming effective include the following: 

(i) For judgment under Rule 50(b); 

(ii) To amend or make additional factual findings under Rule 52(b), whether or not 

granting the motion would alter the judgment; 

(iii) For attorney’s fees under Rule 54 if the district court extends the time to appeal

under Rule 58; 

(iv) To alter or amend the judgment under Rule 59; 

(v) For a new trial under Rule 59; or 

(vi) For relief under Rule 60 of the motion is filed no later than 28 days after the 

judgment is entered. 

Fed. R. App. P. 4(a)(4)(A). There is no argument that Defendants’ Motion for Clarification could 

fall under (i)-(iii) or (v)-(vi). Accordingly, the question before the Court is whether Defendants’ 

Motion qualifies as a motion to alter or amend a judgment under Rule 59(e). 

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Plaintiffs’ Response to the Court’s Order Requiring Jurisdictional Briefing 3

1. Defendants’ Motion for Clarification is not a motion to alter or amend the judgment 

under Rule 59(e).

Federal Rule of Civil Procedure 59(e) states, “A motion to alter or amend a judgment must 

be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). Defendants’ 

Motion cannot be construed as a motion under Rule 59(e) because the Motion does not seek to 

alter or amend the preliminary injunction and the preliminary injunction is not a final judgment.

On its face, Defendants’ Motion seeks clarification of the meaning of the preliminary 

injunction. Dkt. #86 at 1–2. In the Motion, Defendants “respectfully seek clarification of the scope 

of the Court’s order to facilitate their full compliance, give clarity to providers, and inform the 

scope of further proceedings, whether in this Court or on appeal.” Dkt. #86 at 1. Defendants 

specifically cite legal authority supporting the ability of a party to “‘seek district court clarification’

where it‘has doubts about the meaning of any part of the injunction.’” Dkt. #86 at 1 (quoting Gulf 

King Shrimp Co. v. Wirtz, 407 F.2d 508, 517 (5th Cir. 1969)) (cleaned up). Further, in support of 

their motion Defendants cite legal authority that the “district courts possess the inherent 

procedural authority to clarify its order for causes seen by it to be sufficient.” Dkt. #86 at 2 (quoting 

PSSI Hldgs., LLC v. Calhoun, No. 5:21-CV-00080-RWS, 2021 WL 8315396, at *1 (E.D. Tex. 

Sept. 13, 2021) (cleaned up) (emphasis added).

Defendants’ Motion asks the court to clarify its meaning—not to alter or amend its order; 

thus, their Motion cannot be construed as a motion under Rule 59(e). Moreover, Defendants 

expressly invoke the Court’s inherent power and not the power conveyed under Rule 59(e). 

Defendants do not mention Rule 59 anywhere in the Motion. Accordingly, Defendants’ Motion 

for Clarification should not be construed as a motion to alter or amend a judgment under Rule 

59(e). Defendants’ notice of appeal was effective upon filing, and this Court is divested of 

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Plaintiffs’ Response to the Court’s Order Requiring Jurisdictional Briefing 4 

jurisdiction to rule on the Motion.

2. Defendants do not assert any grounds for relief under Rule 59(e).

Defendants’ Motion cited no federal rule as the basis for the relief they were seeking. For 

that reason alone, the Court would be justified in considering it as not having been “file[d] . . . 

under” any of the rules that trigger Fed. R. App. P. 4(a)(4)(A). Defendants are sophisticated 

litigants and the Court can expect them to have cited one of those rules if they intended to trigger 

Fed. R. App. P. 4(a)(4)(A) in the event they chose to file an interlocutory appeal. 

The characteristics of the Motion also do not implicate Rule 59(e). The Fifth Circuit has 

held that Rule 59(e) motions are appropriate in three circumstances, none of which Defendants 

cite in their Motion for Clarification. “Under Rule 59(e), amending a judgment is appropriate (1) 

where there has been an intervening change in the controlling law; (2) where the movant presents 

newly discovered evidence that was previously unavailable; or (3) to correct a manifest error of law 

or fact.” Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 597 (5th Cir. 2017). Defendants do 

not make any such assertions in their Motion for Clarification. Rather than assert a manifest error 

on the Court’s part, Defendants’ motion assumes (incorrectly) that the Court’s order was 

inadvertently unclear. This is an additional reason that the Court should not consider the motion 

to be a Rule 59(e) motion. 

B. Defendants’ Motion for Clarification should be considered a motion under Rule 

54(b). 

While neither the Supreme Court nor the Fifth Circuit has definitively decided whether a 

motion for clarification of an order granting or denial of a motion for preliminary injunction should 

be treated as a motion under Rule 59(e), Fifth Circuit authority supports considering motions to 

reconsider interlocutory orders as motions under Rule 54(b). In Cabral v. Brennan, the Fifth 

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Plaintiffs’ Response to the Court’s Order Requiring Jurisdictional Briefing 5

Circuit held that a motion to reconsider the court’s order granting a motion for partial summary 

judgment should have been analyzed under Rule 54(b). 853 F.3d 763, 766 (5th Cir. 2017). The 

Court held, “Because the order granting partial summary judgment was interlocutory, the court 

should have analyzed the motion for reconsideration under Rule 54(b) instead of Rule 59(e), which 

applies to final judgments [footnote omitted].”). Id. at 766. 

To be sure, the Fifth Circuit has also held that appealable interlocutory orders can also be 

treated as a “judgment” for purposes of Rule 59(e). See Girard v. Drexel Burham Lambert, Inc., 807 

F.2d 490, 492 (5th Cir. 1987) (“An appealable order, such as the district court’s above-referenced 

‘Order to Arbitrate and to Stay,’is a ‘judgment’for purposes of Fed. R. Civ. P. 59(e).”). But more 

recent Fifth Circuit authority supports the proposition that a motion to reconsider an interlocutory 

order is properly reviewed as a motion under Rule 54(b). In Austin v. Kroger Texas, L.P., the Court 

held, “Rule 59(e) governs motions to alter or amend a final judgment; Rule 54(b) allows parties to 

seek reconsideration of interlocutory orders and authorizes the district court to ‘revise[] at any 

time’ ‘any order or other decision ... [that] does not end the action [alterations in original].” 864 

F.3d 326, 336 (5th Cir. 2017). 

Here, the Court’s order does not “end the action,” such that Defendants’ Motion should

be considered a motion under Rule 59(e). Moreover, unlike the order at issue in Birdsong v. 

Wrotenbery, the Court’s Order Granting Plaintiffs’ Motion for Preliminary Injunction is an 

interlocutory order. In Birdsong, the order granted the plaintiffs’ motion for summary judgment 

and enjoined the defendants, thereby disposing of the issues in the case. 901 F.2d 1270, 1271–72 

(5th Cir. 1990). Because an order granting a motion for preliminary injunction is an interlocutory 

order, the Court should consider Defendants’ Motion for Clarification under Rule 54(b).

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Plaintiffs’ Response to the Court’s Order Requiring Jurisdictional Briefing 6

District courts have also held that motions to reconsider interlocutory orders should be 

reviewed under Rule 54(b). See Black v. Experian Info. Sols., Inc., No. CV H-21-04231, 2022 WL 

1809307, at *1 (S.D. Tex. June 2, 2022) (“A motion to reconsider an interlocutory order is 

governed by Federal Rule of Civil Procedure 54(b), which governs motions to reconsider orders 

that do not dispose of every claim.”); Livingston Downs Racing Ass’n, Inc. v. Jefferson Downs Corp., 

259 F. Supp. 2d 471, 474–75 (M.D. La. 2002) (“A motion to reconsider a judgment is treated as a 

Rule 59(e) motion to alter or amend that judgment; see also Brown v. United States, No. 3:20-CV063-DPJ-FKB, 2021 WL 3729296, at *5 (S.D. Miss. Aug. 23, 2021) (reviewing a plaintiff’s motion 

to stay the Court’s denial of a motion for preliminary injunction as a motion for reconsideration 

and holding that Rule 54(b) applied “because the Court’s Order did not resolve the dispute”). 

For these reasons, Defendants’ Motion for Clarification should be considered a motion 

under Rule 54(b).

CONCLUSION

Defendants’ Motion for Clarification is not a motion under Rule 59(e), and the Court lacks 

jurisdiction to rule on it.

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Plaintiffs’ Response to the Court’s Order Requiring Jurisdictional Briefing 7 

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General 

GRANT DORFMAN

Deputy First Assistant Attorney General 

SHAWN E. COWLES

Deputy Attorney General for Civil Litigation

CHRISTOPHER D. HILTON

Chief, General Litigation Division 

Texas Bar No. 24087727 

Christopher.Hilton@oag.texas.gov 

/s/ Amy Snow Hilton 

AMY SNOW HILTON

Assistant Attorney General 

Texas Bar No. 24097834 

Amy.Hilton@oag.texas.gov

WILLIAM D. WASSDORF

Assistant Attorney General 

Texas Bar No. 24103022 

Will.Wassdorf@oag.texas.gov

CHARLES K. ELDRED

Special Counsel for Legal Strategy 

Texas Bar No. 00793681 

Charles.Eldred@oag.texas.gov

Office of the Attorney General of Texas

General Litigation Division

P.O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

COUNSEL FOR THE STATE OF TEXAS

Case 5:22-cv-00185-H Document 96 Filed 11/10/22 Page 7 of 9 PageID 1176
Plaintiffs’ Response to the Court’s Order Requiring Jurisdictional Briefing 8 

/s/ Ryan L. Bangert

RYAN L. BANGERT

TX Bar No. 24045446 

rbangert@ADFlegal.org 

MATTHEW S. BOWMAN

DC Bar No. 993261 

mbowman@ADFlegal.org

Alliance Defending Freedom

440 First Street NW, Suite 600 

Washington, DC 20001 

Telephone: (202) 393-8690 

Facsimile: (202) 347-3622 

COUNSEL FOR AMERICAN ASSOCIATION 

OF PRO-LIFE OBSTETRICIANS AND 

GYNECOLOGISTS, AND CHRISTIAN 

MEDICAL AND DENTAL ASSOCIATIONS

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Plaintiffs’ Response to the Court’s Order Requiring Jurisdictional Briefing 9 

CERTIFICATE OF SERVICE

We certify that a true and accurate copy of the foregoing document was filed electronically 

via CM/ECF. 

/s/ Amy S. Hilton /s/ Ryan Bangert

 Amy S. Hilton Ryan Bangert

 

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