REGGIE B. WALTON, United States District Judge.
Plaintiff ConverDyn brings suit against the United States Department of Energy ("Department") and the Secretary of the Department, Ernest J. Moniz, in his official capacity, alleging that certain actions taken by the Department are arbitrary and capricious and were undertaken without notice and comment in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706(2)(A), 553 (2012), and the United States Enrichment Corporation Privatization Act ("Privatization Act"), 42 U.S.C. § 2297h-10 (2012). Complaint ("Compl.") ¶¶ 118-38. Shortly after filing its complaint, ConverDyn moved for a preliminary injunction. Following oral argument, the Court denied ConverDyn's motion for the reasons set forth below.
The production of nuclear fuel requires several steps: (1) uranium ore is mined and then milled and refined into uranium concentrate, referred to as "natural uranium," "yellowcake," or U308, (2) the natural uranium is converted into uranium hexafluoride (UF
Uranium is valued based on the cost of the different components of the product, each of which have separate market values and can be traded separately. Pl.'s Mot., Exhibit ("Ex.") C (Declaration of Malcolm Critchley ("Critchley Decl.")) ¶ 32. The value of unenriched uranium hexafluoride has two components, the natural uranium and the cost of conversion, whereas the value of low-enriched uranium has three components, the natural uranium, the cost of conversion, and the cost of enrichment. Id. Uranium is valued in two ways: the "spot price" is the price for uranium and related services which will be delivered within twelve months of purchase, and the "term price" is the price for uranium and related services which will be delivered more than one year after purchase. Pl.'s Mot. at 3 n.2 (citing Pl.'s Mot., Ex. B (2014 Review of the Potential Impact of DOE Excess Uranium Inventory On the Commercial Markets ("2014 Report")) at 87.
Both ConverDyn and the Department are participants in the domestic uranium market. ConverDyn is the only domestic provider of conversion services. See Pl.'s Mot., Ex. B (2014 Report) at 11. It operates a conversion plant in Metropolis, Illinois called Metropolis Works. See id. The Department "holds inventories of uranium in various forms and qualities, including highly enriched uranium ..., low-enriched uranium ..., natural uranium ..., and depleted uranium ..., that are currently held as excess and not dedicated to U.S. national security missions" that it sells from time to time. Defs.' Opp'n at 6 (citing Pl.'s Mot., Ex. L (July 2013 Excess Uranium Inventory Management Plan ("2013 Plan")) at iv). The remainder of the Department's inventory comes from government weapons programs and from the purchase of Russian-origin natural uranium. Id. (citing Pl.'s Mot., Ex. L (2013 Plan) at 8-12).
In 1996, Congress enacted the Privatization Act, which includes various provisions relating to the transfer of the interest in the United States Enrichment Corporation, a government corporation previously established by the Energy Policy Act of 1992. 42 U.S.C. §§ 2297h-1 to — 9,12. The Act states that "[t]he Secretary shall not provide enrichment services or transfer or sell any uranium (including natural uranium concentrates, natural uranium hexafluoride, or enriched uranium in any form) to any person except as consistent with this section." Id. § 2297h-10(a). In addition to exceptions for transfers authorized under the Russian High Enriched Uranium Agreement, id. § 2297h-10(b), transfers to the United States Enrichment Corporation, id. § 2297h-10(c), and transfers within the federal government, id. § 2297h-10(e), the Privatization Act also provides that "the Secretary may, from time to time, sell natural and low-enriched uranium (including low-enriched uranium derived from highly enriched uranium) from the Department of Energy's stockpile." Id. § 2297h-10(d)(1). The Act further provides, however, that:
Id. § 2297h-10(d)(2). Determinations under this section remain valid for two years only. Consolidated Appropriations Act, 2012, Pub.L. 112-74, § 312(a), 125 Stat. 786, 878 (2011); Consolidated Appropriations Act, 2014, Pub.L. 113-76, § 306(a), 128 Stat. 5, 175 (2014).
On March 11, 2008, then-Secretary of the Department of Energy Samuel W. Bodman signed a document entitled "Secretary of Energy's Policy Statement on Management of the Department of Energy's Excess Uranium Inventory." Pl.'s Mot., Ex. D (December 16, 2008 United States Department of Energy Excess Uranium Inventory Management Plan ("2008 Plan")) at A-1 to A-4. As relevant here, this document stated
Id. at A-1 to A-2. This "Policy Statement" was attached as an appendix to a document entitled "United States Department of Energy Excess Uranium Inventory Management Plan" dated December 16, 2008, which contained substantially similar language and identified transfers that were ongoing, planned, and under consideration. Id. at ES-1 to ES-2. At the end of the 2008 Plan's Executive Summary, the Department indicated that "[w]hile this Plan's focus is a 10-year period, the disposition of [the Department's] excess uranium inventories identified in this Plan is expected to take about 25 years" and that the Department "expects to periodically update the Plan to reflect new and evolving information, policies and programs." Id. at ES-2. Neither the Policy Statement nor the 2008 Plan were published in the Federal Register or subject to notice and comment.
Id. at iv. The 2013 Plan's Executive Summary then identified specific transfers that were considered in the May 2012 Secretarial Determination required under Section 2297h-10(d). Id. at v. It then continued:
Id. The introduction to the 2013 Plan itself contained the following passage:
Id. at 2 (footnotes in original). The 2013 Plan was neither published in the Federal Register nor was it subject to notice and comment.
In preparation for issuing the 2014 Secretarial Determination required by Section 2297h10(d) of the Privatization Act, the Department contracted with Energy Resources International, Inc., "an experienced and well-regarded nuclear fuel consulting firm," to prepare an analysis of "the potential impact on the domestic uranium mining, conversion and enrichment industries from [the Department's] transfers or sales of uranium being proposed or considered in 2014-2033." Defs.' Opp'n, Attachment ("Attach.") 1, Ex. 1-C (May 12, 2014 Memorandum for the Secretary) ("2014 Memorandum")) at 2. Regarding the current state of the uranium market, the Energy Resources International report observed:
Pl.'s Mot., Ex. B (2014 Report) at ES-2. With respect to the volume of the Department's planned transfers, the Report noted:
Id. at ES-5. And finally, as to the effects of the planned transfers on the domestic conversion industry, the 2014 Report concluded that:
Id. at ES-8 to ES-9. Based on its analysis, Energy Resources International determined that "it is not clear that a reduction in [Department] inventory releases would cause the overall market conditions to change enough to make a significant difference in the health and status of the domestic industries." Id. at ES-10. The 2014 Report did not reach the ultimate issue of whether the transfers would have an "adverse material impact" because that determination is committed to the Secretary alone under the Privatization Act. Id. at ES-11.
In addition to the 2014 Report, the Department met formally and informally with representatives from the uranium industry, including representations from ConverDyn, Defs.' Opp'n, Attach. 1, Ex. 1-A ( [Office of Nuclear Energy] Analysis of the Potential Impacts of Planned [Department] Uranium Transactions (Redacted Version) ("Nuclear Energy Analysis")) at 8; received materials from the Uranium Producers of America and ConverDyn, id.; and received input from one of the government contractors who receives uranium in the Department's planned transactions, id. at 9. The Office of Nuclear Energy concluded that the planned transfers would not have an adverse material impact on the domestic uranium mining, conversion, and enrichment industry, reasoning that:
Id. at 11-12. The May 12, 2014 Memorandum prepared for the Secretary recommending approval of the 2014 Secretarial Determination echoed this conclusion, stating that the 2014 Report "supports a conclusion that although [the Department's] actions will necessarily have some impact on the market, and that this impact is greater now than it was in 2012, [its] actions are not the driver of the current negative states on the domestic uranium production, conversion, or enrichment industries." Defs.' Opp'n, Attach. 1, Ex. 1-C (2014 Memorandum) at 3. With respect to the views of the affected industry, the Memorandum stated that "[a]ll industry participants note the importance of [Department] predictability in supporting stable markets and a strong domestic industry" and "[g]iven this, the offices engaged in uranium transactions strongly believe that it is necessary to continue to adhere to the 2013 Excess Uranium Management Plan." Id.
The Secretary ultimately approved the 2014 Secretarial Determination finding no adverse material impact on the domestic uranium mining, conversion, and enrichment industry on May 15, 2014. Pl.'s Mot., Ex. M. The 2014 Secretarial Determination authorizes the transfer of "up to 2,055 [metric tons of uranium] per year of natural uranium equivalent contained in natural uranium and natural uranium from off-specification non-uranium hexafluoride transferred to [Department] contractors for cleanup services at the Paducah or Portsmouth Gaseous Diffusions Plants" and "up to 650 [metric tons of uranium] per year of natural uranium equivalent contained in low-enriched uranium ... transferred to [National Nuclear Security Administration] contractors for down-blending highly-enriched uranium to [low-enriched uranium] for [National Nuclear Security Administration] programs." Id.
Two Department programs are funded in whole or in large part through the planned transfers. Defs.' Opp'n at 8. The first is the clean-up of environmental contamination at the Department's Gaseous Diffusion Plant in Portsmouth, Ohio. Id. at 9. Since 2010, the Department has contracted with Fluor-B & W Portsmouth to provide clean-up services, a portion of which are paid for with quarterly uranium transfers. Id. at 8-9. The second is an ongoing effort to down-blend high-enriched uranium that is no longer needed for weapons pursuant to a 1993 Presidential Directive. Id. at 8. The Department contracts with WesDyne, who in turn contracts with Nuclear Fuel Services, Inc. for down-blending services, which are paid for with the transfer of a percentage of the resulting low-enriched uranium. Id.
ConverDyn filed suit on June 13, 2014, alleging that the Department is acting in excess of its statutory authority by transferring conversion services, that the 2014 Secretarial Determination's finding that the planned transfers will have no "adverse material impact" is arbitrary and capricious, and that the Department will receive less than fair market value for the planned transfers, in violation of the Privatization Act and the APA. Compl. ¶¶ 118-30. ConverDyn also alleges that the Department's 2013 Excess Uranium Inventory Management Plan is arbitrary and capricious and that the Department's failure to follow notice and comment procedures prior to its release violates the APA. Id. ¶¶ 131-38.
On June 23, 2014, ConverDyn filed its motion for a preliminary injunction seeking to enjoin all of the transfers identified in the 2014 Secretarial Determination. Pl.'s Mot. at 37. The Department scheduled those transfers to take place incrementally on July 15, 2014, August 15, 2014, and September 15, 2014. Pl.'s Mot., Ex. Q (Letters from the Department to the Honorable Diane Feinstein and the Honorable Barbara Mikulski). Upon learning of ConverDyn's intent to file a motion requesting the Court to enjoin the transfers, the Department delayed the first transfer to July 31, 2014, in order to allow full briefing on the motion. Pl.'s Mot. at 3 n.1. Babcock & Wilcox Nuclear Operations Group, Inc. ("Babcock") subsequently filed an amicus curiae brief in support of the defendants' opposition to ConverDyn's motion. Babcock's subsidiary, Nuclear Fuel Services, Inc., provides the down-blending services that will be paid for with the funds acquired from the contested transfers. Amicus Br. at 3-4.
The Court held oral argument on ConverDyn's motion on July 29, 2014 and later that day, issued an order denying the motion for failure to show irreparable harm, with an indication that this opinion setting forth the Court's reasoning in full would be issued later. ECF No. 31.
The purpose of a preliminary injunction "`is merely to preserve the relative positions of the parties'" until the case can be resolved. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)). "`A plaintiff seeking a preliminary injunction must establish [1] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest.'" Sherley v. Sebelius, 644 F.3d 388, 392 (D.C.Cir.2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)) (some alterations in original). Because it is "an extraordinary remedy," a preliminary injunction "should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997)).
The District of Columbia Circuit has applied a "sliding scale" approach in evaluating the preliminary injunction factors. Sherley, 644 F.3d at 392. Under this analysis,
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C.Cir. 2009) (citations and internal quotation marks omitted).
As explained in the Court's July 29, 2014 order denying ConverDyn's motion, the Court finds that ConverDyn has failed to demonstrate irreparable harm, as it must for the issuance of a preliminary injunction. See id. The Court, therefore, begins its discussion with this factor.
In this Circuit, a litigant seeking a preliminary injunction must satisfy "a high standard" for irreparable injury. Id. The asserted injury "must be both certain and great; it must be actual and not theoretical," and the movant must show that "[t]he injury complained of [is] of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm." Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (alterations in original) (citations and quotation marks omitted). A party seeking a preliminary injunction "must show that the alleged harm will directly result from the action which the movant seeks to enjoin." Id.
Additionally, the injury "must be beyond remediation," Chaplaincy of Full Gospel Churches, 454 F.3d at 297, and therefore, in general, "economic loss does not, in and of itself, constitute irreparable harm," Wis. Gas. Co., 758 F.2d at 674. "[M]onetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant's business." Id. And while "the mere fact that economic losses may be unrecoverable does not, in and of itself, compel a finding of irreparable harm," the "recoverability of monetary losses can, and should, have some influence on the irreparable harm calculus." Nat'l
ConverDyn alleges that the contested transfers "will directly cause [it] to sustain $40.5 million in lost profits over the next two years," and "will likely cost [it] an additional $29 million in lost revenue due to changed customer buying habits." Pl.'s Mot. at 30. "As a result," ConverDyn asserts, "the transfers may cause a shift from a profit to a loss in one of the next few years." Id. ConverDyn relies, in part, on the declaration of Malcolm Critchley, president and Chief Executive Officer of ConverDyn. Id. In his declaration, Critchley states that "[Department] transfers under the May 2014 Secretarial Determination will reduce ConverDyn's profits by more than $10 million per year." Pl.'s Mot., Ex. C (Critchley Decl.) ¶ 20. ConverDyn also relies on the 2014 Report, which predicts that the contested transfers will cause a 7-8% reduction in ConverDyn's sales, a 6-8% increase in its production costs, and a 12% and 6% decline in conversion spot and conversion term price respectively. Id. ¶¶ 20-26.
While ConverDyn's projected losses are quite significant, if accurate, ConverDyn has nonetheless failed to meet this Circuit's stringent standard for establishing irreparable harm. As an initial matter, ConverDyn focuses its claim for relief on its projected losses of $40.5 million, but this figure reflects losses from the Department's transfers over the next two years, Pl.'s Mot. at 30, and therefore gives the Court little insight into the magnitude of its loss during the pendency of this case. Because the purpose of a preliminary injunction is to preserve the parties' respective positions only until the case is resolved, Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (citing Univ. of Tex., 451 U.S. at 395, 101 S.Ct. 1830), this omission is significant, see Holiday CVS, L.L.C. v. Holder, 839 F.Supp.2d 145, 170-71 (D.D.C.2012) (Walton, J.) (finding that the plaintiff had failed to demonstrate irreparable injury because it did not provide estimated economic losses for the relevant time period), vacated as moot, 493 Fed. Appx. 108, 108 (D.C.Cir.2012). Although ConverDyn contends that "[e]ach and every transfer has an immediate and continuing adverse impact on the market for conversion services in its current over-supplied condition," Pl.'s Mot. at 31, it presents nothing to the Court to quantify this impact, which must not be merely "an immediate and continuing adverse impact," id. but a loss significant enough to merit preliminary injunctive relief, because generally, "[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough," Wis. Gas Co., 758 F.2d at 674 (citation omitted). Without such evidence, it is also impossible to assess whether Converdyn's harm is sufficiently imminent to warrant a preliminary injunction.
Furthermore, ConverDyn's evidence does not establish that its alleged losses "threaten[] the very existence of [its] business," id. the only circumstance in which this Circuit has endorsed a finding of irreparable harm based on monetary loss, see Nat'l Mining Ass'n, 768 F.Supp.2d at 54 n. 13. While it is clear that the asserted losses, if accurate, would be significant, see Pl.'s Mot., Ex. C (Critchley Decl.) ¶ 20, ConverDyn does not claim that the Department's transfers will force it out of business or even state with certainty that the losses will be significant enough to force the business to operate at a loss, see id. (stating that losses "may cause a shift from a profit to a loss in one of the next few years" (emphasis added)). Instead, Critchley asserts only that the contested transfers threaten ConverDyn's "long-term viability," id. ¶ 13, a characterization that underscores ConverDyn's deficient
Even disregarding this failure, ConverDyn's projected losses do not rise to the level of irreparable harm. A claim of substantial financial losses must be evaluated from the perspective of the organization's total revenues in order to determine if the harm is of a magnitude that warrants injunctive relief. See Holiday CVS, 839 F.Supp.2d at 169-70; N. Air Cargo, 756 F.Supp.2d at 125-26, 126 n. 9; LG Elecs. U.S.A., Inc. v. Dep't of Energy, 679 F.Supp.2d 18, 36 (D.D.C.2010). ConverDyn's alleged loss of $10 million per year, assuming arguendo that this estimate is accurate, is not of sufficient magnitude in light of ConverDyn's annual revenues of $100 million.
ConverDyn's emphasis on the harm resulting from the mere entry of the Department's uranium onto the market is also unpersuasive. Pl.'s Mot. at 31. "Courts within [this] Circuit have generally been hesitant to award injunctive relief based on assertions about lost opportunities and market share." Mylan Pharms., Inc. v. Shalala, 81 F.Supp.2d 30, 42-43 (D.D.C.2000) (collecting cases). While not without precedent, "[l]oss of market share is simply economic harm by another name," and thus a litigant must still demonstrate the considerable magnitude of loss required in this Circuit to warrant preliminary injunctive relief. LG Elecs. U.S.A., 679 F.Supp.2d at 36. Here, the harm that ConverDyn identifies as resulting from the entry of the Department's uranium onto the market is the same financial harm — depressed market prices and lost sales — that the Court has already found insufficient. For this reason, ConverDyn's analogy to cases involving the introduction of a generic drug onto the market falls flat. In those cases, the plaintiffs identified other harms, such as loss of customer goodwill and loss of research and development funding. Bayer HealthCare, LLC v. U.S. Food & Drug Admin., 942 F.Supp.2d 17, 25-26 (D.D.C. 2013); Bracco Diagnostics, Inc. v. Shalala, 963 F.Supp. 20, 29 (D.D.C.1997). No other harm besides the financial effects identified and considered above exists here. ConverDyn's argument regarding the impact of the transfers on the market is therefore of no assistance.
ConverDyn also contends that its economic damages are irreparable because it cannot recover its damages from the Department due to sovereign immunity. Pl.'s Mot. at 32-33. While this Court previously characterized economic damages that are unrecoverable due to sovereign immunity as "irreparable per se," Feinerman v. Bernardi, 558 F.Supp.2d 36, 51 (D.D.C.2008) (Walton, J.), that characterization goes too far and the inability to recover economic losses can more accurately be considered as a factor in determining whether the movant has shown irreparable harm, Nat'l Mining Ass'n, 768 F.Supp.2d at 53. Otherwise, a litigant seeking injunctive relief against the government would always satisfy the irreparable injury prong, nullifying that requirement in such cases. See Air Transp. Ass'n of Am., Inc. v. Export-Import Bank of the United States, 840 F.Supp.2d 327, 335-36 (D.D.C.2012); N. Air Cargo, 756 F.Supp.2d at 125 n. 6. Moreover, a party seeking injunctive relief due to the inability to recover economic losses must nonetheless demonstrate that its harm will be sufficiently great to warrant a preliminary injunction. See Air Transp. Ass'n, 840 F.Supp.2d at 335; N. Air Cargo, 756 F.Supp.2d at 125 & n. 6 (citation omitted). Indeed, the successful movant in Feinerman had demonstrated that approximately forty percent of his business would be jeopardized in the absence of injunctive relief. 558 F.Supp.2d at 50-51. And even there, all this Court found was that while the plaintiff "hardly present[ed] an overwhelming case for a finding of irreparable injury" he did show "that he [was] likely to suffer at least some degree of irreparable injury." Id. at 51 (emphasis added).
Taking all of the above circumstances into account, the Court finds that ConverDyn has failed to satisfy its heavy burden of showing irreparable injury.
Having failed to demonstrate irreparable harm, ConverDyn's motion for a preliminary injunction must be denied even if the other factors weigh in favor of injunctive
As the Court indicated during oral argument on this motion, ConverDyn has demonstrated a likelihood of success on the merits of at least one of its claims. Based on the record before the Court at this time, the Court agrees with ConverDyn that it is likely to prevail on its claim that the 2014 Secretarial Determination's finding that the planned transfers will have no "adverse material impact" is arbitrary and capricious in violation of the APA.
The APA requires courts to "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "The `arbitrary and capricious' standard of review as set forth in the APA is highly deferential," and the Court must "presume the validity of agency action." Am. Horse Prot. Ass'n v. Yeutter, 917 F.2d 594, 596 (D.C.Cir.1990). Nonetheless, a reviewing court must ensure that the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citations and quotation marks omitted). An agency's decision will be considered arbitrary and capricious if:
Id. However, a "court is not to substitute its judgment for that of the agency," and will "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Id. (citations and quotation marks omitted).
Despite the high degree of deference accorded to agency action, the 2014 Secretarial Determination fails on multiple fronts. The Privatization Act requires that the Secretary "determine[] that the sale of the material will not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industry." 42 U.S.C. § 2297h-10(d)(2)(B). Prior to issuing its determination, the Department received a detailed submission from ConverDyn outlining its projected financial losses caused by the Department's planned transfers. Defs.' Opp'n, Attach. 1, Ex. 1-A (Nuclear Energy Analysis) at 8. While the Department acknowledged receipt of these materials during its decisionmaking process, it nowhere addresses why the losses described in ConverDyn's submission do not constitute an "adverse material impact." As this Circuit has observed, "[u]nless the [agency] answers objections that on their face seem legitimate, its decision can hardly be classified as reasoned." PPL Wallingford Energy LLC v. FERC, 419 F.3d 1194, 1198 (D.C.Cir.2005) (alterations in original) (citations and quotation marks omitted). The Department's "failure to respond meaningfully" to ConverDyn's objections thus renders its decision arbitrary and capricious. Id. (citations and quotation marks omitted).
Perhaps most troubling, however, is the Department's failure to address why the 2014 Report's conclusions regarding the effects of the Department's planned transfers
With respect to ConverDyn's other claims, however, the Court is unpersuaded that ConverDyn is likely to succeed. ConverDyn's argument that the Department is not authorized to transfer conversion services is belied by the broad authority granted to the Department's predecessor agencies in the Atomic Energy Act, the plain language of Section 2297h-10, and that Section's requirement that the Secretary determine that the Department's transfers will not have an adverse material impact on the domestic conversion industry. See Defs.' Opp'n at 27-29. As to ConverDyn's claim that the Department's receipt of the lower spot market price for its transfers does not
In evaluating whether a preliminary injunction should issue, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter, 555 U.S. at 24, 129 S.Ct. 365 (citation and quotation marks omitted). As discussed above, ConverDyn asserts that it faces losses of $10 million annually as a result of the uranium transfers contemplated by the 2014 Secretarial Determination. Pl.'s Mot., Ex. C (Critchley Decl.) ¶ 20. ConverDyn also notes that staff levels at Metropolis Works were decreased in response to lower market demand due to the Department's past transfers, and that "it seems likely that, if [the Department] continues to drive down both the demand and the price for uranium conversion services, more job losses will follow." Pl.'s Mot. at 35 (citing Pl.'s Mot., Ex. B (2014 Report) at 81, 83-84). In response, the Department contends that the issuance of a preliminary injunction "will effectively cripple" its clean-up of the Department's Gaseous Diffusion Plant in Portsmouth, Ohio, Defs.' Opp'n at 40-42, and its high-enriched uranium down-blending program in Erwin, both of which rely entirely or almost entirely on the Department's uranium transfers for funding, id. at 42-43. According to the Department, an injunction prohibiting the planned transfers will result in a loss of $160 million per year in funding for the Portsmouth clean-up and the consequent layoff of approximately 825 employees in 2014 and 2015, as well as an increase in the long-term cost of the project by up to $120 million per year. Defs.' Opp'n, Attach. 2 (Declaration of James M. Owendoff ("Owendoff Decl.")) ¶ 15. As to the down-blending program, the Department asserts that operations would: 1) cease entirely if it were unable to conduct the planned uranium transfers, which would cause the Department to incur "significant economic liability" due to its violation of its contract with the down-blending contractor, WesDyne; 2) "significantly undercut" the United
In light of the substantial harm that the Department's two programs would incur if the planned transfers were prohibited, the Court finds that ConverDyn has not demonstrated that the balance of equities weighs in its favor. Indeed, "[i]t often happens that ... one party or the other will be injured whichever course is taken," and so "[a] sound disposition ... must [then] depend on a reflective and attentive appraisal as to the outcome on the merits." Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1326 (D.C.Cir.1998) (some alterations in original) (citation and quotation marks omitted). When the issuance of a preliminary injunction, while preventing harm to one party, causes injury to the other, this factor does not weigh in favor of granting preliminary injunctive relief. Allina Health Servs. v. Sebelius, 756 F.Supp.2d 61, 69 (D.D.C.2010) (finding that the balance of the equities weighs against issuing an injunction because the alleged economic injury to the movant would be offset by economic injury to the Department of Health and Human Services); see Serono Labs., 158 F.3d at 1326 (finding the balance of the harms "results roughly in a draw" where one of the parties would be harmed regardless of court's decision).
ConverDyn's argument that the Court should disregard the Department's alleged harms because "[a]ny impacts to [Department] programs would be due to [the Department's] own choices" is unavailing. Pl.'s Reply at 22. Even if the Court were inclined to penalize the Department for acting in reliance on its ability to transfer quantities of its uranium stockpile, subject, of course, to the restrictions imposed by the Privatization Act, issuance of a preliminary injunction would still harm innocent third parties — the employees that would be laid off due to the shutdown of the clean-up and down-blending programs. See Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (framing the balance of the equities element as ensuring "that an injunction would not substantially injure other interested parties"). The Court therefore finds it entirely appropriate to consider the Department's asserted harms in the balance of equities equation, regardless of whether the Department's actions may ultimately be found to violate the APA and the Privatization Act.
ConverDyn also contends that the balance of the equities tips in its favor because issuance of an injunction would preserve the status quo. Pl.'s Mot. at 33. ConverDyn's argument rests on a sound premise as "[t]he primary purpose of a preliminary injunction is to preserve the object of the controversy in its then existing condition — to preserve the status quo," Aamer v. Obama, 742 F.3d 1023, 1043 (D.C.Cir.2014) (citations and quotation marks omitted), but ConverDyn's attempt to have it applied here is misplaced. Rather than maintaining the status quo, ConverDyn's requested injunction prohibiting all of the Department's uranium transfers, Pl.'s Mot. at 37, would alter the status quo, as the Department has annually transferred uranium in quantities of approximately ten percent of domestic requirements since implementing the 2008 Plan, see Pl.'s Mot. at 8. Accordingly, the balance of the equities does not weigh in favor of issuing ConverDyn's requested injunction.
Like the balance of the equities, neither ConverDyn nor the Department
While it is true that the restrictions on the Department's uranium sales in Section 2297h10(d) reflect a concern about the impact of the Department's transfers on the domestic uranium mining, conversion, and enrichment industry, see § 2297h-10(d)(2)(B), it does not follow that Section 2297h-10(d) reflects a congressional choice between the competing interests raised here because Congress was not faced with the precise choice presented to the Court when it enacted Section 2297h-10. The Court declines ConverDyn's invitation, see Pl.'s Reply at 21-22, to infer that Congress' lack of appropriations for the Department's clean-up and down-blending programs indicates that Congress has determined that those programs are unimportant. See In re Aiken Cnty., 725 F.3d 255, 260 (D.C.Cir.2013). Moreover, another member of this Court has previously recognized the public interest in the continuation of the Department's environmental clean-up activities in other contexts. See, e.g., Toxco Inc. v. Chu, 724 F.Supp.2d 16, 33 (D.D.C.2010). The Court, therefore, finds that ConverDyn has failed to demonstrate that the public interest weighs in favor of preliminary injunctive relief.
For the foregoing reasons, the Court concludes that ConverDyn's motion for a preliminary injunction must be denied. ConverDyn has failed to demonstrate that it will suffer irreparable harm in the absence of injunctive relief, a requirement for the issuance of a preliminary injunction. Moreover, while it has shown a likelihood of success on the merits on at least one of its claims, it has not shown that the balance of the equities or the public interest weighs in its favor. ConverDyn has thus failed to carry its burden of establishing that it is entitled to the extraordinary remedy of a preliminary injunction.
