UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) NORTHERN AIR CARGO, et al., ) ) Plaintiffs, ) ) v. ) ) UNITED STATES POSTAL SERVICE, ) Civil Action No. 10-2076 (EGS) ) Defendant, ) ) and ) ) PENINSULA AIRWAYS, INC., ) ) Defendant-Intervenor. ) )

MEMORANDUM OPINION

Pending before the Court is a motion for temporary

restraining order and preliminary injunction by Plaintiffs

Northern Air Cargo (“NAC”), Tatonduk Outfitters Ltd d/b/a Everts

Air Cargo (“Everts”), and Lynden Air Cargo LLC (“Lynden”)

(collectively, “plaintiffs”). Plaintiffs seek to enjoin

Defendant United States Postal Service (the “Postal Service”)

from tendering nonpriority mainline bypass mail to Defendant-

Intervenor Peninsula Airways, Inc. (“PenAir”) on five mainline

routes in rural Alaska pursuant to

(g)(5)(C)

(“§ 5402(g)(5)(C)”). Specifically, plaintiffs challenge the

Postal Service’s purportedly ultra vires determination that

PenAir had satisfied the “Prior Service and Capacity Requirement”

of

(g)(1)(A)(iv)(II) (“§ 5402(g)(1)(A)(iv)(II)”) as of December 3, 2010.1 Plaintiffs argue that they will suffer

“immediate and irreparable injury in the form of . . .

substantial non-recoverable economic losses” if an immediate

injunction is not granted. Pls.’ Mot. at 1. Upon consideration

of the motion, the responses and reply thereto, the applicable

law, the arguments of counsel made during the motions hearing

held on December 21, 2010, and for the following reasons, the

Court hereby DENIES plaintiffs’ motion for temporary restraining

order and preliminary injunction.

I. BACKGROUND2

This is the second action that plaintiffs have filed related

to the Postal Service’s purportedly unlawful tender of

1 As discussed infra, the Prior Service and Capacity Requirement requires the Postal Service “in selecting carriers of nonpriority bypass mail . . . [to] adhere to an equitable tender policy . . . and [to], at a minimum, require that any such carrier– . . . (iv) have provided scheduled service . . . between 2 points within the State of Alaska for at least 12 consecutive months with aircraft– . . . (II) over 7,500 pounds payload capacity before being selected as a carrier of nonpriority bypass mail at the intra-Alaska mainline service mail rate.”

(g)(1)(A)(iv)(II). 2 An extensive factual and statutory background is set forth in the Court’s September 23, 2010 Memorandum Opinion, which was issued in Civil Action No. 09-2065. For purposes of this Opinion, the Court will assume the parties’ familiarity with this factual and statutory background, and will direct interested readers to the Court’s September 23, 2010 Memorandum Opinion for additional background. See Northern Air Cargo v. United States Postal Serv., No. 09-2065,

(D.D.C. Sept. 23, 2010). A lengthy discussion of the Intra-Alaska Bypass Mail System and the Rural Service Improvement Act of 2002 can also be found in the Court’s September 23, 2010 Memorandum Opinion. Id. at *2-8.

2 nonpriority mainline bypass mail to PenAir. The first action

came before the Court on November 3, 2009 as a motion for

preliminary injunction (hereinafter, the “2009 Action”). See

Civil Action No. 09-2065, Docket No. 5. In the 2009 Action,

plaintiffs challenged the Postal Service’s August 7, 2009 and

September 2, 2009 determinations that PenAir was eligible for the

equitable tender of nonpriority mainline bypass mail on five

mainline routes: Anchorage-Dillingham, Anchorage-King Salmon,

Anchorage-Aniak, Anchorage-McGrath, and Anchorage-Unalakleet.

With the consent of the parties, plaintiffs’ motion for

preliminary injunction was consolidated with a determination on

the merits pursuant to Federal Rule of Civil Procedure 65(a)(2),

and the parties subsequently filed cross-motions for summary

judgment. See Civil Action No. 09-2065, Minute Order dated Nov.

4, 2009.

On September 23, 2010, this Court issued an opinion granting

in part and denying in part the parties’ cross-motions for

summary judgment.3 The Court held, among other things, that the

Postal Service had exceeded its statutory authority in

determining that PenAir was not required to satisfy the Prior

Service and Capacity Requirement of § 5402(g)(1)(A)(iv)(II) in

order to be tendered nonpriority mainline bypass mail pursuant to

3 The Court’s September 23, 2010 ruling is currently being appealed by both plaintiffs and PenAir. See USCA Case Numbers 10-5385 and 10-5402.

3 § 5402(g)(5)(C). See Northern Air Cargo,

. The Court consequently enjoined the Postal

Service from tendering nonpriority mainline bypass mail to PenAir

until the airline satisfied the Prior Service and Capacity

Requirement of § 5402(g)(1)(A)(iv)(II). See Civil Action No. 09-

2065, Order at 2. Accordingly, on September 24, 2010, the Postal

Service ceased tendering nonpriority mainline bypass mail to

PenAir. See Postal Service’s Opp’n at 6.

On October 12, 2010, PenAir submitted a new application to

the Postal Service once again requesting the equitable tender of

nonpriority mainline bypass mail in the five mainline markets at

issue in this case: Dillingham, King Salmon, Aniak, McGrath, and

Unalakleet. See Postal Service’s Opp’n at 6-7; Declaration of

Steven Deaton (“Deaton Decl.”) ¶ 3. By letter dated October 21,

2010, the Postal Service found that PenAir had satisfied the

Prior Service and Capacity Requirement. See Ex. B to Deaton

Decl.; see also Deaton Decl. ¶ 4 (“[T]he [Postal Service]

confirmed that PenAir had satisfied the Prior Service and

Capacity Requirement . . . by flying a mainline passenger

aircraft between any two points within the State of Alaska for at

least 12 months . . . .”). The letter also stated, however, that

because “[t]he district court did not address whether PenAir

should receive credit for the past 13 months in which it has been

providing mainline service in Alaska . . . the actual tender of

4 mail to PenAir may violate the court’s injunction.” Ex. B to

Deaton Decl. Prior to tendering nonpriority mainline bypass mail

to PenAir, therefore, the Postal Service explained that it needed

clarification from the Court regarding whether its proposed

equitable tender would violate the Court’s injunction. See Ex. B

to Deaton Decl. (“[T]he Postal Service will immediately begin

tendering mail to PenAir upon the occurrence of either of the

following events: (1) the court lifts the injunction; [or] (2)

PenAir obtains an appropriate clarification of (or modification

to) the injunction, which, in the sole judgment of the Postal

Service, makes it clear that tendering mail will not violate the

court’s injunction.”).

On November 17, 2010, the Postal Service filed a “Motion for

Order to Clarify Judgment” in the 2009 Action. See Civil Action

No. 09-2065, Docket No. 38. In its motion, the Postal Service

asked the Court to clarify whether it “intended to credit PenAir

for the past 13 months during which it has been providing

mainline passenger service in Alaska.” Civil Action No. 09-2065,

Postal Service’s Mot. for Clarification at 2. On December 2,

2010, the Court denied the Postal Service’s motion. See Civil

Action No. 09-2065, Minute Order dated Dec. 2, 2010 (“After

careful consideration of defendant’s motion, the Court concludes

that the issue on which defendant seeks clarification - ‘whether

PenAir should receive credit for the past 13 months during which

5 it has been providing mainline service to Alaskans,’ Def.’s Mot.

at 2 - is not properly before the Court. Specifically, the Court

finds that the issue presented by defendant would require the

Court to entertain new factual and legal issues beyond the scope

of the Court’s Memorandum Opinion and Order.”). Following the

Court’s issuance of this ruling, the Postal Service concluded

that PenAir had satisfied the Prior Service and Capacity

Requirement. See Deaton Decl. ¶¶ 7-8. Soon thereafter, on

December 6, 2010, the Postal Service began tendering nonpriority

mainline bypass mail to PenAir on the five requested mainline

routes. See Deaton Decl. ¶ 7.

On December 8, 2010, plaintiffs filed an emergency motion

for an order to show cause why the Postal Service should not be

found in contempt in the 2009 Action, arguing that the Postal

Service had violated the Court’s injunction by resuming tender of

nonpriority mainline bypass mail to PenAir. See Civil Action No.

09-2065, Docket No. 47. On that same date, plaintiffs also filed

the instant action, in which it requested a temporary restraining

order and preliminary injunction. The Court held a status

hearing in the cases on December 9, 2010, at which time it stayed

briefing on plaintiffs’ motion for contempt in the 2009 Action,

and entered an expedited briefing schedule in the instant case.

A hearing was held on plaintiffs’ motion on December 21, 2010.

Plaintiffs’ motion for temporary restraining order and

6 preliminary injunction is now ripe for determination by the

Court.

II. LEGAL STANDARD FOR INTERIM INJUNCTIVE RELIEF

Preliminary injunctive relief is an “extraordinary remedy

never awarded as of right.” Winter v. NRDC, Inc.,

,

(2008); Munaf v. Geren,

,

(2008) (“A preliminary injunction is an

extraordinary and drastic remedy[.]” (internal quotation marks

omitted)). In deciding whether to grant a preliminary

injunction, the Court must evaluate whether: “(1) the plaintiff

has a substantial likelihood of success on the merits; (2) the

plaintiff would suffer irreparable injury were an injunction not

granted; (3) an injunction would substantially injure other

interested parties; and (4) the grant of an injunction would

further the public interest.” Ark. Dairy Coop. Ass’n v. United

States Dep’t of Agric.,

(D.C. Cir. 2009)

(citing Serono Labs., Inc. v. Shalala,

(D.C. Cir. 1998)); see also Hall v. Daschle,

, 3

n.2 (D.D.C. 2009) (“The same standard applies to both temporary

restraining orders and to preliminary injunctions.”). The moving

party bears the burden of persuasion and must demonstrate, “by a

clear showing,” that the requested relief is warranted.

Chaplaincy of Full Gospel Churches v. England,

(D.C. Cir. 2006).

7 These four factors have typically been evaluated on a

“sliding scale,” whereby if the movant makes an unusually strong

showing on one of the factors, then it does not necessarily have

to make as strong a showing on another factor. Davis v. Pension

Benefit Guar. Corp.,

(D.C. Cir. 2009)

(citing Davenport v. Int’l Bhd. of Teamsters,

(D.C. Cir. 1999)). While it is unclear whether the “sliding

scale” is still controlling in light of the Supreme Court’s

decision in Winter, the Court need not decide this issue because

plaintiffs’ request for a temporary restraining order and

preliminary injunction fails even under the less stringent

“sliding scale” analysis of Davenport. See

(declining, given

the facts of the case, to decide if Winter created a “stricter

standard” to obtain interim injunctive relief).

III. ANALYSIS

Plaintiffs argue that all four factors necessary to obtain

interim injunctive relief “weigh strongly in favor of

Plaintiffs,” Pls.’ Mot. at 11 n.9, while the Postal Service and

PenAir argue that none of the criteria for interim injunctive

relief have been met. The Court will begin by addressing

plaintiffs’ likelihood of success on the merits.

A. Substantial Likelihood of Success

The merits of this case turn on whether the Postal Service

properly determined, on December 3, 2010, that PenAir had

8 satisfied the Prior Service and Capacity Requirement and was

therefore an eligible mainline carrier under § 5402(g)(5)(C).

As a threshold matter, the Court’s analysis of the validity

of the Postal Service’s interpretation of § 5402(g)(5)(C) is

governed by Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc.,

(1984). Under Chevron, the Court

must first determine “whether Congress has directly spoken to the

precise question at issue.”

. Courts “use

‘traditional tools of statutory construction’ to determine

whether Congress has unambiguously expressed its intent,” Serono,

, including an examination of the statute’s text,

structure, purpose, and legislative history. See Shays v. FEC,

(D.C. Cir. 2005). “If the intent of Congress is

clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed

intent of Congress.” Chevron,

. If, however,

“the statute is silent or ambiguous with respect to the specific

issue, the question for the court is whether the agency’s answer

is based on a permissible construction of the statute.”

. In making such an assessment, “considerable weight” is

generally accorded to “an executive department’s construction of

a statutory scheme it is entrusted to administer[.]”

In this case, both parties rely on a “plain meaning”

interpretation of the Prior Service and Capacity Requirement.

9 Specifically, plaintiffs argue that the “plain language of the

Prior Service and Capacity Requirement confirms that PenAir is

not eligible to receive tender of mainline bypass mail under

Section 5402(g)(5)(C),” Pls.’ Mot. at 12, while defendants

contend that the Postal Service’s decision to tender nonpriority

mainline bypass mail to PenAir “honors the plain language of the

Prior Service and Capacity Requirement.” PenAir’s Opp’n at 7.

For the reasons discussed below, the Court concludes that

plaintiffs have failed to demonstrate that they have a

substantial likelihood of success on the merits.

The Prior Service and Capacity Requirement states, in

relevant part, that:

The Postal Service, in selecting carriers of nonpriority bypass mail to any point served by more than 1 carrier in the State of Alaska, shall adhere to an equitable tender policy within a qualified group of carriers, in accordance with the regulations of the Postal Service, and shall, at a minimum, require that any such carrier– . . . (iv) have provided scheduled service with at least the number of scheduled noncontract flights each week established under subparagraph (B)(ii) between 2 points within the State of Alaska for at least 12 consecutive months with aircraft– . . . (II) over 7,500 pounds payload capacity before being selected as a carrier of nonpriority bypass mail at the intra-Alaska mainline service mail rate.

(g)(1)(A)(iv)(II). Plaintiffs argue that -

contrary to the plain language of § 5402(g)(1)(A)(iv)(II) - the

Postal Service impermissibly relied upon the ten months that

PenAir was unlawfully carrying nonpriority mainline bypass mail

10 (i.e., while the 2009 Action was pending) in concluding that

PenAir satisfied the Prior Service and Capacity Requirement.4

Specifically, plaintiffs argue that “[f]or the Prior Service and

Capacity Requirement to have any meaning, a carrier must provide

the required service before being tendered Mainline Bypass Mail.”

Pls.’ Mot. at 14 (emphasis in plaintiffs’ motion). Plaintiffs

further assert that “[n]othing in the Prior Service and Capacity

Requirement permits a carrier to satisfy the requirement while

carrying – and being compensated for carrying – Mainline Bypass

Mail,” and that “[s]uch an interpretation contravenes the plain

language of the statute and flies in the face of the unmistakable

purpose of the statute; i.e., to ensure that prospective new

carriers demonstrate their viability and a sustained commitment

to serving the rural Alaskan communities with Large Aircraft for

twelve consecutive months before being permitted to underwrite

their operations with the financially significant Mainline Bypass

Mail revenues.” Pls.’ Mot. at 14 (emphasis in plaintiffs’

motion). In sum, because PenAir only operated an aircraft with

over 7,500 pounds payload capacity for approximately two months

before it began receiving an ultra vires tender of nonpriority

4 It is undisputed that PenAir did not begin operating aircraft with over 7,500 pounds payload capacity until on or about August 22, 2009. It is also undisputed that the Postal Service began tendering nonpriority mainline bypass mail to PenAir on November 9, 2009 and continued to do so until the Court issued its Memorandum Opinion in the 2009 Action on September 23, 2010. See Pls.’ Mot. at 13.

11 mainline bypass mail from the Postal Service, plaintiffs argue

that the Postal Service impermissibly determined on December 3,

2010 that PenAir had satisfied the clear and unambiguous language

of the Prior Service and Capacity Requirement.

Defendants, by contrast, argue that the Postal Service’s

ultra vires tender of nonpriority mainline bypass mail to PenAir

is irrelevant to whether the Postal Service properly determined

that PenAir had satisfied the Prior Service and Capacity

Requirement as of December 3, 2010. Instead, defendants assert

that “[d]etermining whether the Postal Service has validly

‘selected’ a carrier for nonpriority mainline bypass mail is [] a

simple exercise in arithmetic: Count backwards 12 months from the

date of selection; if the carrier has flown the requisite number

of scheduled mainline flights during those 12 straight months,

the carrier qualifies and the Postal Service’s selection is

valid.” PenAir’s Opp’n at 7. Because PenAir had operated the

requisite number of scheduled mainline flights for approximately

16 consecutive months prior to the Postal Service’s December 3,

2010 decision to tender nonpriority mainline bypass mail to

PenAir, PenAir argues that the Postal Service correctly

determined that the airline had satisfied the unambiguous

requirements set forth in § 5402(g)(1)(A)(iv)(II). See PenAir’s

Opp’n at 7-8; see also Deaton Decl. ¶ 4 (“[T]he [Postal Service]

confirmed that PenAir had satisfied the Prior Service and

12 Capacity Requirement . . . by flying a mainline passenger

aircraft between any two points within the state of Alaska for at

least 12 months, after reviewing the flight schedules submitted

to the Postal Service as well as data provided electronically to

the Postal Service by the Official Airline Guide . . . . In

reaching that conclusion, the [Postal Service] did not segregate

bypass mail-carrying flights and non-bypass mail-carrying flights

because the statute, section 5402(g)(1)(A)(iv), merely states

that the airline requesting immediate equitable tender of

mainline bypass mail must have ‘provided scheduled service with

at least the number of scheduled noncontract flights each week

. . . between 2 points within the State of Alaska for at least 12

consecutive months.’”).5

5 In further support of its plain language interpretation, PenAir asserts that the first clause of § 5402(g)(1)(A) sets forth the factors that the Postal Service must consider “when ‘selecting carriers of nonpriority mainline bypass mail’ - that is, when making its present decision.” PenAir’s Opp’n at 9 (quoting

(g)(1)(A)) (emphasis in PenAir’s brief). PenAir explains that § 5402(g)(1)(A)(iv)’s requirement that an airline must have provided the requisite number of flights for at least 12 consecutive months “before being selected as a carrier of nonpriority [mainline] bypass mail,”

(g)(1)(A)(iv)(II), is “most naturally read to refer to the Postal Service’s present decision: a carrier must have flown for 12 months continuously before the Postal Service selects it to carry bypass mail now.” PenAir’s Opp’n at 10 (emphasis in PenAir’s brief). Focusing on the structure of § 5402(g)(1)(A), PenAir argues that “[p]laintiffs’ contention that ‘selecting’ refers to one decision in Section 5402(g)(1)(A) and ‘being selected’ refers to an entirely different decision – when used in a subclause of the same section - is simply not plausible.” PenAir’s Opp’n at 10 (emphasis in PenAir’s brief).

13 Upon careful consideration of the parties’ arguments, the

Court concludes that plaintiffs have failed to establish that

they have a “substantial likelihood” of success on the merits.

Ark. Dairy Coop.,

. As the Court explained during

the motions hearing held on December 21, 2010, each of the

parties has raised compelling arguments in support of their

respective positions. Because the Court requires additional

briefing and further explanation in order to resolve the case on

the merits, the Court concludes that “[a]t this point, both

sides’ likelihood of success on the merits . . . must be rated

‘uncertain.’” Potter v. District of Columbia,

(D.D.C. 2005). With the arguments of the parties in

equipoise, the Court finds that plaintiffs have failed to carry

their burden on this factor.

B. Irreparable Harm

Next, the Court must determine whether plaintiffs will

suffer irreparable harm in the absence of interim injunctive

relief. This Circuit “has set a high standard for irreparable

injury.” Chaplaincy of Full Gospel Churches,

.

“[T]he injury must be both certain and great; it must be actual

and not theoretical.” Wisc. Gas Co. v. FERC,

, 674

(D.C. Cir. 1985) (per curiam).

Plaintiffs argue that from November 9, 2009 through

September 23, 2010 - the time period during which PenAir was

14 unlawfully tendered nonpriority mainline bypass mail in the

Anchorage-Dillingham, Anchorage-King Salmon, Anchorage-Aniak,

Anchorage-McGrath, and Anchorage-Unalakleet markets – plaintiffs

collectively lost approximately $4 million in revenue as a result

of their decreased market share. See Pls.’ Mot. at 18-19; see

also Declaration of David Karp (“Karp Decl.”) ¶ 11 (averring that

NAC lost approximately $1.3 million in revenue from November 9,

2009 through September 23, 2010); Declaration of Judy A. McKenzie

(“McKenzie Decl.”) ¶ 9 (averring that Lynden lost approximately

$1.5 million in annual revenue from nonpriority bypass mail and

freight after it was forced to exit the Dillingham market on

February 13, 2010); Declaration of Susan Hoshaw (“Hoshaw Decl.”)

¶ 10 (averring that Everts lost approximately $1.17 million in

bypass mail revenues and $386,000 in freight revenues from

November 9, 2009 through September 23, 2010). Plaintiffs assert

that “[i]f the Postal Service resumes tendering Mainline Bypass

Mail to PenAir in the five requested markets, Plaintiffs will

suffer losses proportionate to those suffered from November 9,

2009 through September 24, 2010.” Pls.’ Mot. at 19. Because

they “currently have no mechanism to recover these or future

losses resulting from the Postal Service’s ultra vires acts[,]”

plaintiffs argue that their injuries “constitute per se

irreperable harm.” Pls.’ Mot. at 19-20 (citing Express One

15 Int’l, Inc. v. U.S. Postal Serv.,

(D.D.C.

1992)).

In response, defendants argue that “[t]his Court has

consistently rejected the argument Plaintiffs advance that non-

recoverable economic damages . . . constitute per se irreparable

harm,” Postal Service’s Opp’n at 13 (citing cases), and assert

that plaintiffs cannot demonstrate irreparable harm “from a

slight reduction in market share in the five markets at issue[.]”

Postal Service’s Opp’n at 11. This Court agrees.

In order to obtain interim injunctive relief, it is not

enough for a plaintiff to show that it will suffer some harm in

the absence of an injunction; instead, the moving party must

demonstrate that its harm will be “great.” Wisc. Gas, 758 F.2d

at 674. This is true even if the moving party will purportedly

suffer irrecoverable economic losses. While such a party may be

excused from demonstrating that its economic loss “threatens the

very existence of the movant’s business,” id., the plaintiff must

nevertheless demonstrate that its business would suffer “great”

harm in the absence of interim injunctive relief.6 Put another

6 In Wisconsin Gas, the Circuit held that “recoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant’s business.” 758 F.2d at 674. Because Wisconsin Gas only addressed “recoverable monetary loss,” some judges on this Court have distinguished recoverable economic loss from irrecoverable economic loss when assessing irreparable harm. See, e.g., Feinerman v. Bernardi,

(D.D.C. 2008) (“The defendant argues that ‘monetary loss is not irreparable harm unless it threatens the

16 way, “the injury must be more than simply irretrievable; it must

also be serious in terms of its effect on the plaintiff.” Gulf

Oil Corp. v. Dep’t of Energy,

(D.D.C.

1981).

In this case, the Court finds that plaintiffs have failed to

satisfy this Circuit’s stringent standard for irreperable harm

based on their failure to offer “‘substantiation of severe

economic impact.’” PenAir’s Opp’n at 17 (quoting WMATC v.

Holiday Tours, Inc.,

, 843 n.3 (D.C. Cir. 1977)).

Specifically, plaintiffs failed to demonstrate how their

projected revenue losses and diminished market shares on the five

remote Alaskan routes at issue in this case will impact the

overall economic health of each of the plaintiff airlines. While

the Court is aware that each plaintiff stands to lose

approximately $130,000 per month in anticipated revenue in the

absence of an interim injunction, the Court is unable to assess

the magnitude of this loss without evidence of each airline’s

very existence of the plaintiff’s business.’ The Court agrees with this proposition as a general matter. But where, as here, the plaintiff in question cannot recover damages from the defendant due to the defendant’s sovereign immunity, any loss of income suffered by a plaintiff is irreparable per se[.]” (internal citations omitted)). While the Court agrees that irrecoverable financial loss may constitute irreparable injury in some cases, this Court is of the opinion that a party asserting such a loss is not relieved of its obligation to demonstrate that its harm will be “great.” If this were not the case, then prospective injunctive relief would often cease to be an “extraordinary remedy” in cases involving government defendants. Winter,

.

17 projected annual gross revenue. The Court finds plaintiffs’

failure to put forth evidence on this issue particularly

troubling in light of the fact that this issue was raised in

PenAir’s opposition brief,7 and therefore could have been

addressed by plaintiffs in their reply.8 Unaided by sworn

declarations from plaintiffs discussing the overall impact of the

projected losses on plaintiffs’ businesses, the Court is unable

to find that the purported harm to be suffered by plaintiffs is

sufficiently great to warrant interim injunctive relief. See

generally Cobell v. Norton,

(D.C. Cir. 2004)

7 See PenAir’s Opp’n at 17-18 (“The fact that the Plaintiffs will lose market share on five discrete—and very remote—Alaskan routes says absolutely nothing about how that will impact the Plaintiffs’ economic survival. . . . Nothing in the Plaintiffs’ declarations remotely suggests that PenAir’s entry into these five small markets will precipitate bankruptcy or mass layoffs. Indeed, the combined damages that the Plaintiffs forecast they will suffer is under $4 million—or roughly $1.3 million on average apiece. While a million dollars is certainly real money, the Plaintiffs’ declarations never suggest how big—or small—this putative loss would be as a percentage of their annual gross revenues.”). 8 Plaintiffs failed to address this issue until their counsel was specifically questioned about it during oral argument on December 21, 2010. In response to the Court’s questioning, plaintiffs’ counsel provided a chart to the Court which purportedly reflects the net income of each of the plaintiffs during the time period that PenAir was receiving the ultra vires tender of nonpriority mainline bypass mail. Despite its best efforts, the Court finds plaintiffs’ chart incomprehensible and therefore unpersuasive. Moreover, this late-proffered chart, which provides no information regarding plaintiffs’ gross revenues for the same time period, is simply insufficient to satisfy plaintiffs’ heavy burden of demonstrating irreperable harm.

18 (“A preliminary injunction is an extraordinary remedy that should

be granted only when the party seeking the relief, by a clear

showing, carries the burden of persuasion.” (citing Mazurek v.

Armstrong,

(1997))); see also, e.g., Coal. for

Common Sense in Gov’t Procurement v. United States,

, 169 n.3 (D.D.C. 2008) (rejecting plaintiff’s

argument that its members would “suffer irreparable harm because

lost profits [were] not likely to be recovered later in [the]

litigation in the form of damages due to protections of sovereign

immunity” where the plaintiff’s purported economic injury was not

“sufficiently grave to constitute irreparable harm”).9

Accordingly, plaintiffs have also failed to demonstrate that this

factor weighs in favor of their requested relief.

9 The Court will note that while an airline’s projected loss of approximately $1.3 million over 10 months is by no means insignificant, this Court has declined to grant prospective injunctive relief when much larger sums of irrecoverable economic losses were at stake. See, e.g., Sanofi-Aventis U.S. LLC v. FDA, No. 10-1255,

(D.D.C. Aug. 25, 2010) (finding it unlikely that the plaintiff had “met this Circuit’s stringent standard for irreparable harm” where the plaintiff stood to lose approximately $2.5 billion in annual domestic sales because the plaintiff had worldwide revenues of $40 billion annually). In determining whether a party requesting interim injunctive relief has demonstrated irreperable harm, the focus of the Court’s inquiry is on the magnitude of harm that will be suffered by the moving party, not the particular amount of economic damages that the plaintiff will suffer.

19 C. Harm to Other Interested Parties

Because the Postal Service has been tendering nonpriority

mainline bypass mail to PenAir since December 6, 2010, PenAir

would undoubtedly be harmed if the Court entered an interim

injunction. See Declaration of Daniel Seybert (“Seybert Decl.”)

¶ 20 (“[A]n injunction preventing the Postal Service from

continuing to tender [nonpriority mainline bypass] mail to PenAir

would result in PenAir losing millions of dollars in revenue. . .

. Plaintiffs claim lost revenues totaling about $4 million, split

among the three Cargo Carriers (with no single Plaintiff claiming

lost revenues of more than $1.5 million in freight and mail). By

contrast, an injunction barring the Postal Service from tendering

this nonpriority mainline bypass mail to PenAir would cause

PenAir to lose about $4 million in revenues, more than two-and-a-

half times the lost revenues any single Plaintiff claims it would

lose.”). Whatever revenue losses plaintiffs will lose to PenAir

in the absence of an injunction, PenAir will lose to plaintiffs

in the presence of one. The Court therefore concludes that the

harm alleged by plaintiffs and the harm faced by PenAir are

essentially “‘a wash.’” Sanofi-Aventis,

(quoting Serono,

).10

10 While plaintiffs also assert that they will “suffer serious non-economic harm . . . in the form of cancelled flights, withdrawal from the market(s), and terminated employees” in the absence of an injunction, Pls.’ Reply at 12, PenAir has represented that in the presence of an injunction it will cease

20 Accordingly, this factor is neutral in the Court’s analysis.

D. Public Interest

The last factor the Court must consider is whether the

public interest favors entry of a preliminary injunction.

Plaintiffs argue that “[t]he public interest is ‘best served by

having federal agencies comply with the requirements of federal

law.’” Pls.’ Mot. at 21 (quoting Patriot, Inc. v. U.S. Dep’t of

Housing & Urban Dev.,

(D.D.C. 1997)). Arguing

that “the Postal Service has exceeded the scope of its statutory

authority and has failed to comply with the requirements of

federal law,” plaintiffs assert that “[t]his fact alone

demonstrates that the public interest supports the granting of

injunctive relief.” Pls.’ Mot. at 21 (internal quotation marks

omitted). While it is undoubtedly true that the public has an

interest in governmental agencies following the law, given the

facts of this case, an injunction would serve the public interest

only if plaintiffs are likely to succeed on the merits. As

discussed above, however, the Court has found that the likelihood

of plaintiffs’ success is uncertain. See supra p. 14.

In light of this uncertainty, the Court is unwilling to

conclude that the public interest would be served by enjoining

the tender of nonpriority mainline bypass mail to the only

to provide mainline passenger service on four of the five lines at issue in this case. These non-economic harms, therefore, appear to be unavoidable regardless of the Court’s decision.

21 mainline passenger carrier on the five mainline routes at issue

in this case: Dillingham, King Salmon, Aniak, McGrath, and

Unalakleet.11 While plaintiffs argue that an interim injunction

would not prevent PenAir from continuing to provide mainline

passenger service, Pls.’ Reply at 13, PenAir has indicated that

it would likely cease to provide mainline passenger service on

four of the five routes if an interim injunction was entered. As

a result, Alaskan residents in at least four communities would

likely be left without mainline passenger service. Based on the

current posture of this case, therefore, the Court concludes that

plaintiffs have failed to establish that the public interest

favors interim injunctive relief.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES plaintiffs’

motion for a temporary restraining order and preliminary

injunction. This decision, however, in no way forecloses the

possibility that plaintiffs will be able to establish that the

Postal Service impermissibly determined that PenAir was eligible

for the equitable tender of nonpriority mainline bypass mail on

December 3, 2010. As this Court has already recognized,

plaintiffs have raised some compelling arguments in support of

their position; upon a more fully developed record, plaintiffs

11 Plaintiffs only provide cargo service to these five Alaskan communities.

22 may well be able to succeed on the merits. Instead, the Court

holds only that upon the current record, plaintiffs have failed

to demonstrate, “by a clear showing,” that they are entitled to

the extraordinary and drastic remedy of interim injunctive

relief. Chaplaincy of Full Gospel Churches,

.

Even though plaintiffs have failed to establish that they

meet the stringent criteria for the grant of a temporary

restraining order or preliminary injunction, the Court is

nevertheless sensitive to plaintiffs’ claims of irrecoverable

economic injury. In an effort to minimize any potential losses,

therefore, the parties are directed to propose an expedited

briefing schedule to the Court that will enable the case to be

argued and resolved in April 2011. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: EMMET G. SULLIVAN United States District Judge December 23, 2010

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