United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted March 19, 2012 Decided June 22, 2012

No. 11-7082

PATTON BOGGS LLP,

APPELLANT

v.

CHEVRON CORPORATION AND GIBSON, DUNN & CRUTCHER 

LLP

APPELLEES

Consolidated with 11-7089

Appeals from the United States District Court

for the District of Columbia

(No. 1:10-cv-01975)

James E. Tyrrell Jr., Anthony J. Laura, Eric S. 

Westenberger, and Charles E. Talisman were on the briefs for 

appellant. 

Theodore J. Boutrous Jr., Thomas H. Dupree Jr., and 

John F. Bash were on the brief for appellee. Thomas G. 

Hungar and Andrea E. Neuman entered appearances.
2

Before: SENTELLE, Chief Judge, BROWN and GRIFFITH, 

Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: This case is but a small part of a 

long-running and now sprawling international litigation battle 

in which various indigenous Ecuadorian groups claim that 

Chevron Corporation is liable for environmental harm caused 

in the Amazon over three decades. Patton Boggs LLP 

represents the plaintiffs and would like to continue to do so. 

The district court denied Patton Boggs both a declaratory 

judgment that it could not be disqualified from that 

representation and leave to amend its complaint with claims

that Chevron and its counsel, Gibson, Dunn & Crutcher LLP, 

tortiously interfered with the firm’s contract with its clients. 

For the reasons set forth below, we affirm the district court.

I

In 1993, indigenous Ecuadorian groups (the Ecuadorian 

Plaintiffs) filed suit against Chevron in the Southern District 

of New York. That suit was eventually dismissed in 2001 on 

grounds of forum non conveniens. In February 2011, an 

Ecuadorian court hearing a successor suit entered a 

multibillion dollar judgment against Chevron. Chevron has 

appealed that judgment in Ecuador and sued in tribunals

around the world to prevent its enforcement. See Chevron 

Corp. v. Donziger, 768 F. Supp. 2d 581 (S.D.N.Y. 2011)

(discussing the underlying environmental dispute and the 

ensuing litigation).

To aid its defense against the Ecuadorian suit, beginning 

in 2009 Chevron filed multiple proceedings under 28 U.S.C. 

§ 1782, which authorizes federal district courts to compel 
3

discovery for use in foreign litigation. In November 2010, 

Patton Boggs appeared on behalf of the Ecuadorian Plaintiffs 

in one of those matters. Patton Boggs had recently acquired 

the Breaux Lott Leadership Group, a lobbying firm in 

Washington, D.C. that had provided services to Chevron on 

issues related to the litigation in Ecuador. (The record does 

not disclose the precise nature of those services.) Gibson,

Dunn & Crutcher LLP sent Patton Boggs a letter expressing 

“grave concerns that [its] appearance in this matter constitutes 

a conflict of interest that could result in disqualification” 

because “Patton Boggs attorneys, former Senators Lott and 

Breaux, formerly represented Chevron in a substantially 

related matter.” Def.’s Mot. to Dismiss Ex. A. Despite 

disavowing any intent to take immediate action, Chevron and 

Gibson Dunn reserved “the right to take any action we deem 

appropriate” in the future. Id.

The day after receiving Chevron’s letter, Patton Boggs 

sued in the district court in Washington, D.C. seeking a 

declaratory judgment that it could not be disqualified from 

representing the Ecuadorian Plaintiffs in any current or future 

proceeding on the basis of Breaux Lott’s prior relationship 

with Chevron. Compl. 10. Chevron moved to dismiss the suit, 

arguing it was not ripe because no one had asked any court to

disqualify Patton Boggs. Chevron also urged the district court 

to use its discretion under the Declaratory Judgment Act and

decline to exercise jurisdiction.

Before the district court ruled on Chevron’s motion to 

dismiss, Patton Boggs sought leave to amend its complaint to 

add claims against both Chevron and Gibson Dunn for, 

among other things, tortious interference with contract.

1

 1 Patton Boggs also asserted claims for civil conspiracy and 

tortious interference with an attorney-client relationship. The 
4

Patton Boggs alleged that Chevron and its counsel had

undertaken a series of abusive litigation tactics and engaged 

in a public campaign of false accusations that Patton Boggs 

was complicit in fraudulently obtaining the Ecuadorian 

judgment, all “aimed at forcing Patton Boggs to breach its 

contract with the Ecuadorian Plaintiffs with the ultimate aim 

to deprive the Ecuadorian Plaintiffs of counsel.” Am. Compl. 

¶ 75.

The district court dismissed Patton Boggs’s declaratory 

judgment claim, holding it was premature. Patton Boggs, LLP 

v. Chevron Corp. (Chevron I), 791 F. Supp. 2d 13, 23-25

(D.D.C. 2011). And even if it were ripe, the court explained 

that it would nevertheless use its ample discretion under the 

Declaratory Judgment Act to decline jurisdiction. Id. at 25.

The court also denied Patton Boggs leave to bring what the 

court concluded was a futile claim. Alleging conduct aimed at 

forcing but not actually causing a breach was simply not 

enough to make out a claim for tortious interference with 

contract. Id. at 20-21.

In response, Patton Boggs asked the court to reconsider 

its decisions, which the court did under Federal Rule of Civil 

Procedure 59(e). See id. at 27. The court again concluded that 

the more prudent use of its discretion under the Declaratory 

Judgment Act was to leave the question of disqualification to 

the various courts in which the § 1782 proceedings are 

pending. Id. at 27-29. As for the tort claim, Patton Boggs 

asserted that the district court used the wrong analysis by 

assessing the claim under the Restatement (Second) of Torts 

 

district court denied Patton Boggs leave to pursue these claims, see 

Patton Boggs, LLP v. Chevron Corp. (Chevron I), 791 F. Supp. 2d 

13, 21 (D.D.C. 2011), and the firm does not challenge those rulings 

on appeal.
5

§ 766, which requires a breach of contract, rather than 

§ 766A, which does not and requires only allegations that its 

performance was made “more expensive or burdensome.” But 

the court found that Patton Boggs had not, in fact, pled such a 

claim and held that its argument on reconsideration was new 

and therefore untimely. Id. at 30-31. Finally, as part of this 

same motion, Patton Boggs sought yet again to amend the 

complaint, this time expressly alleging a claim under § 766.

But the court ruled once again that it was too late in the day to 

advance new legal theories. Id. at 32.

At the same time that it filed its motion for 

reconsideration, Patton Boggs took the unusual step of filing a 

new, separate complaint asserting claims identical to those in 

the original lawsuit.2 The district court dismissed this new 

complaint, explaining that the duplicate claims were barred by

issue or claim preclusion and that Patton Boggs had also

failed to properly state a cause of action with its new § 766 

theory. See Patton Boggs, LLP v. Chevron Corp. (Chevron 

II), 825 F. Supp. 2d 35, 38-42 (D.D.C. 2011).

Patton Boggs appealed each of these orders. 

 2 Although Patton Boggs says it filed this duplicate complaint

as a “protective measure,” Appellant’s Br. 9, the district court was

not impressed. In fact, the court noted its sympathy for the 

defendants’ argument that Patton Boggs had pursued the second 

suit “unreasonably and vexatiously,” which would entitle the 

defendants to fees and costs under 28 U.S.C. § 1927, and stayed its 

hand “only because the bar for the imposition of fees and costs 

under § 1927 is extremely high.” Patton Boggs, LLP v. Chevron 

Corp. (Chevron II), 825 F. Supp. 2d 35, 42 (D.D.C. 2011).
6

II

Patton Boggs argues on appeal that the district court 

abused its discretion by failing to exercise jurisdiction and 

take up the request for a declaratory judgment that Patton 

Boggs cannot be disqualified from representing the 

Ecuadorian Plaintiffs because of Breaux Lott’s prior work for 

Chevron. “Since its inception, the Declaratory Judgment Act 

has been understood to confer on federal courts unique and 

substantial discretion in deciding whether to declare the rights 

of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286

(1995). As a result, in declaratory judgment actions “the 

normal principle that federal courts should adjudicate claims 

within their jurisdiction yields to considerations of 

practicality and wise judicial administration.” Id. at 288.3

Urging that “it would be impracticable . . . to resist 

disqualification in the numerous jurisdictions in which § 1782 

proceedings are now pending and any future jurisdictions 

where Chevron continues to file these proceedings,” Compl. 

¶ 41, Patton Boggs seeks a declaration from the district court 

in Washington, D.C. that it is qualified to represent the 

Ecuadorian Plaintiffs in every jurisdiction where Chevron has 

or might initiate a § 1782 proceeding. But the district court 

thought that considerations of practicality cut the other way. 

 3 We also note it is likely the district court lacked jurisdiction 

over this broad declaratory judgment request on ripeness grounds. 

See Chevron I, 791 F. Supp. 2d at 23-24. However, we need not

address that question because we find no error in the decision of the 

district court to refuse to exercise jurisdiction even if it could. Had 

the district court instead agreed to exercise jurisdiction, we would 

of course be required to assess these other jurisdictional questions 

before reaching the merits of the dispute. See Dominguez v. UAL 

Corp., 666 F.3d 1359, 1361-62 (D.C. Cir. 2012).
7

Deciding whether the declaratory judgment is warranted 

would be complex and difficult because the applicable law 

varies from jurisdiction to jurisdiction. Chevron I, 791 F. 

Supp. 2d at 24 (“[T]he Court would need to decipher and 

apply the law of every jurisdiction where Chevron might seek 

Patton Boggs’s disqualification — potentially every single 

state.”). The resolution of the issue would turn on the law of 

the jurisdiction in which the § 1782 proceeding is brought and 

for that reason would be better resolved by the court where 

the proceeding is pending. See also Groper v. Taff, 717 F.2d 

1415, 1418 (D.C. Cir. 1983) (explaining that a district court 

has primary responsibility for “supervising the members of its 

bar” and enforcing the ethical rules of its jurisdiction). Given 

this, the district court concluded that “to inform all other 

federal courts that Patton Boggs is qualified to represent the 

[Ecuadorian Plaintiffs] before those courts would be 

incredibly intrusive.” Chevron I, 791 F. Supp. 2d at 25. 

Patton Boggs argues that the district court’s concerns 

were misguided, but we think they were spot on. All agree 

that any jurisdiction considering a motion to disqualify Patton

Boggs would first determine whether the services Breaux Lott 

provided Chevron could be considered “legal” in nature. 

Patton Boggs contends that each jurisdiction would apply the 

law of the District of Columbia, which the district court here 

is uniquely qualified to apply, to decide that question. But 

Patton Boggs provides no support for its assertion that courts 

sitting in other jurisdictions would apply D.C. law, and not 

their own governing rules, and we see no reason to think they 

would. See MODEL RULES OF PROF’L CONDUCT R. 8.5(b)(1)

(explaining that the rules to be applied to assess “conduct in 

connection with a matter pending before a tribunal” are “the 

rules of the jurisdiction in which the tribunal sits”); accord

D.C. RULES OF PROF’L CONDUCT R. 8.5(b)(1); MD. LAWYER’S 

RULES OF PROF’L CONDUCT R. 8.5(b)(1); N.Y. RULES OF 
8

PROF’L CONDUCT R. 8.5(b)(1). Further, even if Patton Boggs 

were correct that each court would need to ask first whether 

Breaux Lott provided Chevron legal services as defined under 

D.C. law, the ultimate determination “whether an attorney is 

competent to appear in a particular proceeding is properly a 

question for the presiding court to resolve.” Chevron I, 791 F. 

Supp. 2d at 25. We agree with the district court “that it would 

overreach by adjudicating the propriety of Patton Boggs’s

appearance before other courts.” Id. at 28.

III

Patton Boggs argues that its original effort to amend the 

complaint stated a claim for tortious interference with 

contract under Restatement § 766A. Of course, if Patton 

Boggs is right about that, then the district court was wrong to 

say the claim was late because first brought in the Rule 59(e) 

motion. Our review of this issue proceeds in two steps. We 

first review de novo the district court’s decision that Patton 

Boggs failed to plead a cause of action under § 766A. Rudder 

v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). If the 

§ 766A argument is in fact “new,” we then ask whether the 

district court abused its discretion under Rule 59(e) by 

refusing to permit it to become part of the complaint. See 

Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004).4

 4 Patton Boggs is correct that had the district court excused its 

lateness and rejected the § 766A argument on the merits, we would 

review that decision de novo. But abuse of discretion is appropriate 

to review a decision about “whether to consider” a new argument. 

Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 341 n.9 (D.C. 

Cir. 1991). Here, the district court’s explanation that it would reject 

the new argument on the merits “[e]ven if [it] were not untimely” is 

merely an alternate holding; it does not excuse Patton Boggs’s 

untimeliness. See Chevron I, 791 F. Supp. 2d at 31; see also GSS 

Group Ltd. v. Nat’l Port Auth., 2012 WL 1889384, at *5 (D.C. Cir. 
9

The proposed amendment expressly stated that Patton 

Boggs was proceeding on a theory of breach of contract, and 

not on a claim of expense and burden. See Am. Compl. ¶ 75 

(“The Defendants have engaged in improper offensive tactics 

aimed at forcing Patton Boggs to breach its contract with the

Ecuadorian Plaintiffs.” (emphasis added)); cf. Barefoot 

Architect, Inc. v. Bunge, 632 F.3d 822, 834 (3d Cir. 2011) 

(finding a § 766A claim adequately pled where, unlike here, 

the pleadings made clear that the claimants “were attempting 

to invoke expense and delay, rather than nonperformance, as 

the origin of their damages”).5

 

May 25, 2012) (“A district court does not open the door to further 

consideration of a forfeited claim by giving an alternative, meritsbased reason for rejecting it.”).

Furthermore, Patton Boggs 

dispelled any doubts regarding what claim it raised when its 

“own reply brief laid out the precise formulation of tortious 

interference that it now argues the Court erred by employing.” 

Chevron I, 791 F. Supp. 2d at 30-31. When Chevron argued 

that allegations of breach were required, Patton Boggs’s reply

was not to urge the contrary but instead to argue that it need 

only allege that Chevron was attempting to cause a breach. Id.

at 31. Indeed, Patton Boggs cited the breach requirement and 

argued entirely within that framework. See Pl.’s Reply in 

Supp. of Mot. for Leave to Amend 12 (“Under D.C. law, 

tortious interference with contract has four elements . . . [one 

of which is] intentional procurement of [the contract’s] breach 

by the defendant . . . .” (quoting Sturdza v. United Arab 

5 In that case, the complaint alleged that the defendant had 

“engaged in a course of action” that “was designed and calculated 

to delay and interfere with the permitting process for the 

construction” project the plaintiff sought to perform. Barefoot 

Architect, 632 F.3d at 834. Here, Patton Boggs alleged a course of 

action “aimed at forcing Patton Boggs to breach its contract.” Am. 

Compl. ¶ 75 (emphasis added). The contrast is clear.
10

Emirates, 281 F.3d 1287, 1305 (D.C. Cir. 2002)) (internal 

quotation marks omitted)). No one — not the district court, 

not Chevron, not even Patton Boggs — suggested the 

complaint invoked § 766A until after the district court 

rendered its judgment and Patton Boggs recognized its 

mistake. 

The district court committed no error in concluding that 

Patton Boggs failed to raise the § 766A argument until its 

Rule 59(e) motion. Rule 59(e) motions “need not be granted 

unless the district court finds that there is an ‘intervening 

change of controlling law, the availability of new evidence, or 

the need to correct a clear error or prevent manifest 

injustice.’” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. 

Cir. 1996) (per curiam) (quoting Nat’l Trust v. Dep’t of State, 

834 F. Supp. 453, 455 (D.D.C. 1993)). Patton Boggs does not 

argue that any of these grounds applies, and none does. 

Because Rule 59(e) is not a vehicle to present a new legal 

theory that was available prior to judgment, see Fox v. Am. 

Airlines, Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004), the 

district court did not abuse its discretion in denying the 

motion. 

IV

In its new complaint, Patton Boggs sought relief based on 

allegations that Chevron and Gibson Dunn forced the 

Ecuadorian Plaintiffs to breach their contract with Patton 

Boggs. Again, we review the district court’s dismissal for 

failure to state a claim de novo. Rudder, 666 F.3d at 794. To 

survive a motion to dismiss, the complaint must “plead[] 

factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct 

alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and

“must suggest a plausible scenario that shows that the pleader 
11

is entitled to relief,” Jones v. Horne, 634 F.3d 588, 595 (D.C. 

Cir. 2011) (quoting Atherton v. D.C. Office of the Mayor, 567 

F.3d 672, 681 (D.C. Cir. 2009)) (alterations and internal 

quotation marks omitted). Patton Boggs’s complaint fails to 

do so.

D.C. law, which both parties assume applies, see 

Chevron I, 791 F. Supp. 2d at 20 (citing In re Korean Air 

Lines Disaster, 932 F.2d 1475, 1495 (D.C. Cir. 1991) 

(“[C]ourts need not address choice of law questions sua 

sponte.”)), requires a plaintiff making a claim of tortious 

interference to establish “(1) the existence of a contract, (2) 

defendant’s knowledge of the contract, (3) defendant’s 

intentional procurement of the contract’s breach, and (4) 

damages resulting from the breach,” Cooke v. GriffithsGarcia Corp., 612 A.2d 1251, 1256 (D.C. 1992). As to the 

requirement of intentional procurement of breach, the new 

complaint states only that “Defendants have engaged in 

further misconduct by undertaking efforts to cut off the 

Ecuadorian Plaintiffs’ source of funds, causing the 

Ecuadorian Plaintiffs to breach their contract with Patton 

Boggs by non-payment of Patton Boggs’ legal fees and 

expenses.” Compl. ¶ 90, Chevron II, 825 F. Supp. 2d 35. This

is much too vague. It is unclear who Patton Boggs asserts 

breached what obligation. The claim that the Ecuadorian 

Plaintiffs breached their contract by “non-payment” is 

contradicted by the admission that Patton Boggs “never 

alleged that the Ecuadorian Plaintiffs were responsible for 

paying their litigation costs directly out of their own pockets.” 

Appellant’s Reply Br. 26. Furthermore, we do not know what 

Patton Boggs is alleging the defendants did to cut off the 

supposed “source of funds.” And as the district court 

explained, “[T]he fact that Patton Boggs is no longer being 

paid does not establish that Chevron and Gibson Dunn are 

responsible for that outcome, let alone that they intentionally 
12

caused it.” Chevron II, 825 F. Supp. 2d at 42. We are left in 

the dark as to who breached what obligation and how, and the 

manner in which the defendants intentionally caused that 

breach. The complaint does not allege the requisite “plausible 

scenario” that could show Patton Boggs is entitled to relief. 

Jones, 634 F.3d at 595. We agree with the district court that 

the allegation is nothing but “an unadorned, the-defendantunlawfully-harmed-me accusation.” Chevron II, 825 F. Supp. 

2d at 42 (quoting Iqbal, 556 U.S. at 678) (internal quotation 

marks omitted).

V

For the foregoing reasons, the district court’s orders are

Affirmed.