                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA


                                                         )
UNITED STATES OF AMERICA,                                )
                                                         )
                 Plaintiff,                              )
                                                         )
        v.                                               )    Civil No. 12-1402 (RCL)
                                                         )
VOLVO CONSTRUCTION                                       )
EQUIPMENT AB,                                            )
                                                         )
                Defendant.                               )
                                                         )


                                       MEMORANDUM OPINION

        The United States brought this action against defendant Volvo Construction Equipment

AB (“VCE”) alleging violations of the Clean Air Act (“CAA”) and regulations promulgated

thereunder. The case was assigned to the undersigned judge as a related case to United States v.

Volvo Powertrain, 98-cv-2547. See Pl.’s Notice of Related Case, ECF No. 2. VCE objects to the

United States’ filing this as a related case. Def.’s Mot. for Reassignment (“Def.’s Objection”),

ECF No. 8. The Court agrees with VCE’s objections and will transfer the case to the Calendar

Committee for random reassignment. 1

I.      BACKGROUND

        Title II of the CAA, as amended 42 U.S.C. § 7521 et seq., and regulations promulgated

thereunder set emissions standards for sources of air pollution including internal combustion

engines not used in motor vehicles (“nonroad engines”). EPA has established emission standards

for new nonroad engines, varying with model year, size, and type of engine. See 40 C.F.R. §


1
 VCE also moved to dismiss for lack of personal jurisdiction and improper venue. Def.’s Mot. to Dismiss, ECF No.
6. Because the Court transfers the case to the Calendar Committee for reassignment, it does not reach these issues.
89.112; see also 42 U.S.C. § 7547(a)(3)-(4). New nonroad engines cannot be sold or imported

unless covered by a certificate of conformity issued by EPA verifying that the engine satisfies

the appropriate emissions standard. § 7522(a)(1); 40 C.F.R. § 89.1003(a)(1)(i)-(ii). For each

model year, a certificate covering the “engine family” must be obtained prior to sale or

importation. § 89.105. Manufacturers are prohibited from selling any covered engine that does

not bear a permanent emission control information label verifying that the engine conforms to

these requirements. 42 U.S.C. §§ 7541(c)(3)(C) & 7522(a)(4)(A); 40 C.F.R. §§ 89.110 &

89.1003(a)(4)(ii).

II.       THIS CASE IS NOT RELATED TO VOLVO POWERTRAIN UNDER LOCAL
          CIVIL RULE 40.5

          The United States filed the present action on behalf of EPA pursuant to 42 U.S.C. §

7524(a)-(b) and 40 C.F.R. § 89.1006(a)-(b) alleging numerous violations of the CAA’s

certification and labeling requirements for nonroad engines. See Compl. ¶¶ 29-46, ECF No. 1.

The case was assigned to the undersigned judge directly as related to United States v. Volvo

Powertrain, 98-cv-2547. See Pl.’s Notice of Related Case, ECF No. 2. VCE objected, seeking

to transfer the case to the Calendar Committee for reassignment. Def.’s Objection.

          “The general rule governing all new cases filed in this courthouse is that they are to be

randomly assigned.” Tripp v. Exec. Office of President, 196 F.R.D. 201, 202 (D.D.C. 2000)

(three-judge calendar committee). 2 The “fundamental rationale” of random assignment is “to

ensure greater public confidence in the integrity of the judicial process” by “guarantee[ing] fair

2
    The Comment to LCvR 40.5(c)(3) explains:

          The Court has eliminated the provision in this Rule that permitted a party to appeal to the Calendar
          and Case Management Committee an individual judge's decision with respect to whether cases are
          related because the Court does not believe it is appropriate for a party to be able to seek review of
          a decision of one judge of this Court by three of that judge’s co-equal colleagues. As amended, the
          Rule would make the individual judge’s decision final.

Cmt. LCvR 40.5(c)(3).

                                                           2
and equal distribution of cases to all judges, avoid[ing] public perception or appearance of

favoritism in assignments, and reduc[ing] opportunities for judge-shopping.” Id.

       Local Civil Rule 40.5 stands as an exception to the general rule. It provides that, in the

interests of judicial economy, “[w]here the existence of a related case in this court is noted at the

time . . . the complaint is filed, the Clerk shall assign the new case to the judge to whom the

oldest related case is assigned.” LCvR 40.5(c)(1). New cases are deemed “related” under rule

40.5(a)(3) when (1) “the earliest is still pending on the merits in the District Court” and (2) they

either (i) “relate to common property,” (ii) “involve common issues of fact,” or (iii) “grow out of

the same event or transaction.” LCvR 40.5(a)(3). And, rule 40.5(a)(4) recognizes cases as

“related” where “where a case is dismissed, with prejudice or without, and a second case is filed

involving the same parties and relating to the same subject matter.” LCvR 40.5(a)(4). “The

party requesting related-case designation and seeking to avoid random assignment bears the

burden of showing that the cases are related under a provision of Local Civil Rule 40.5.” Autumn

Journey Hospice, Inc. v. Sebelius, 753 F. Supp. 2d 135, 140 (D.D.C. 2010) (citing Judicial

Watch, Inc. v. Rossotti, 2002 WL 31100839, at *1 (D.D.C.)).

        As a “general rule,” a case settled by consent decree is no longer “pending on the

merits.” Stewart v. O'Neill, 225 F. Supp. 2d 16, 19-20 (D.D.C. 2002). “To conclude otherwise

would allow plaintiffs to file related cases for years afterwards so long as the court retained

jurisdiction to consider attorneys’ fees applications, to remedy violations of the consent decree or

to function in other prophylactic capacities.” Keepseagle v. Glickman, 194 F.R.D. 1, 2 (D.D.C.

2000). In contrast, then-Chief Judge Robinson found that a case was still “pending on the

merits” despite the existence of an approved consent decree where the parties might under the




                                                 3
terms of that decree “need to litigate issues that must be considered ‘merits’ issues.” Collins v.

Pension Ben. Guar. Corp., 126 F.R.D. 3, 7 (D.D.C. 1989).

       The present action is not “related” to Volvo Powertrain under rule 40.5(a)(3). Because

Volvo Powertrain was settled by consent decree approved by Judge Kennedy in 1999, see United

States v. Volvo Powertrain, 854 F. Supp. 2d 60, 63 (D.D.C. 2012), and because that decree does

not authorize the parties to continue to litigate “merits” issues, that case is no longer “pending on

the merits.” Compare Stewart, 225 F. Supp. 2d at 19-20, with Collins, 126 F.R.D. at 7. While

the Court retains jurisdiction to resolve disputes regarding the implementation of the consent

decree, see Volvo Powertrain, 854 F. Supp. 2d at 64; see also Pl.’s Objection 5, the availability

of remedial proceedings does not qualify as an exception to the “general rule” that a such a case

is no longer “pending on the merits.” Stewart, 225 F. Supp. 2d at 19-20; see also Keepseagle,

194 F.R.D. at 2 (concluding that a lawsuit was no longer “pending on the merits” where the

Court retained jurisdiction “over these few matters typically reserved to courts after the approval

of a settlement or entry of a consent decree”); Doe v. Von Eschenbach, 2007 WL 1655881

(D.D.C. June 7, 2007) (concluding that a case in which the sole outstanding motion was a request

for attorneys’ fees was not “pending on the merits”). The United States has failed to meet its

burden. See Autumn Journey Hospice, 753 F. Supp. 2d at 140.

       Moreover, even if a remedial action under a consent decree could be considered “pending

on the merits,” there is no such action currently pending in Volvo Powertrain that relates to

“common property,” “common issues of fact,” or which “grow out[s] of the same event or

transaction” as this case. LCvR 40.5(a)(3). The prospects that a controversy under the consent

decree raising similar issues may reach this Court in Volvo Powertrain at some point in the




                                                 4
future, see Pl.’s Response 2-3, is inadequate under the local rule. 3 Howard v. Gutierrez, 405 F.

Supp. 2d 13, 16 (D.D.C. 2005) (“The language of the Rule is in the present tense . . . [so] the

Court reads the language of the Rule as restricting the designation of related cases to those that

are related in the present, not in the possible future.”).

         Finally, the present action is not “related” to Volvo Powertrain under rule 40.5(a)(4)

because, while Volvo Powertrain is not “pending on the merits,” it was never dismissed. See Doe

v. Von Eschenbach, 2007 WL 1655881 at *2.

III.     CONCLUSION

         Because the Court finds that the present action is not a “related case” to Volvo

Powertrain under LCvR 40.5, it transfers the action to the calendar committee for random

reassignment.

         An order shall issue with this opinion.

         Signed by Royce C. Lamberth, Chief Judge, on February, 13, 2013.




3
 This Court’s order transferring the case to the calendar committee for reassignment is without prejudice to the
parties’ ability to file a notice of a related case in the future, if appropriate, pursuant to LCvR 40.5 (b).

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