    SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION


                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

NAVISTAR, INC.,

                       Plaintiff,

                       v.                            Civil Action No. 11-cv-449 (RLW)

U.S. ENVIRONMENTAL PROTECTION
AGENCY,

                       Defendant.


                                     MEMORANDUM OPINION

       Before the Court is Plaintiff Navistar Inc.’s (“Navistar”) Motion for a Preliminary Injunction

(Docket No. 17). That motion is now fully briefed and ripe for resolution. Having considered the

Motion, Opposition, and Reply, and for the reasons set forth below, Navistar’s Motion is denied.

                                         FACTUAL SUMMARY

        Navistar, a manufacturer of heavy-duty diesel engines, has requested several agency records from

the Environmental Protection Agency (“EPA”) under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552. Navistar served the EPA with five FOIA requests, seeking various categories of documents relating

to, inter alia, the agency’s testing and certification of certain SCR-equipped vehicles or engines. (Am.

Compl. ¶¶ 12-15). Navistar claims that these agency records are critically important to determine whether

certain Model Year 2010 and 2011 heavy-duty diesel engines equipped with urea-based SCR technology

are in compliance with the EPA standards. (Am. Compl. ¶ 8). Additionally, Navistar asserts that these




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    SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION

records are essential to determine whether the EPA is failing to enforce requirements against SCR engine

manufacturers whose engines exceed the new EPA oxides of nitrogen (“NOx”) emissions standards.1

       Navistar’s five FOIA requests were served on the EPA on August 19, 2010; August 30, 2010;

October 5, 2010; November 24, 2010; and March 23, 2011. (Am. Compl. ¶ 12). Navistar alleges that,

with the exception of a set of documents responsive to its August 30 request, the EPA has effectively

ignored all five of Navistar’s FOIA requests. (Am. Compl. ¶ 16).

        Navistar now moves this Court for a preliminary injunction enjoining the EPA from continuing to

withhold records responsive to Navistar’s FOIA requests and seeks an order directing the EPA to

immediately produce non-exempt documents responsive to Navistar’s requests.

                                               ANALYSIS

       A. Standard of Review

          As the Supreme Court has held, “a preliminary injunction is an extraordinary and drastic

remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of

persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis added).

On a motion for a preliminary injunction, the court must balance four factors: (1) irreparable harm to

the movant, (2) the movant's showing of a substantial likelihood of success on the merits, (3)

substantial harm to the nonmovant, and (4) public interest. CFGC v. England, 454 F.3d 290, 297

(D.C. Cir. 2006). The four factors have typically been evaluated on a “sliding scale and must be



1
        SCR (Selective Catalytic Reduction) is a urea-based aftertreatment technology used by
Navistar’s competitors as a means to comply with the NOx regulations. (Allen Aff. ¶ 6). Navistar
implements an EGR (Exhaust Gas Recirculation) technology to comply with the standard. (Allen
Aff. ¶ 4).
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balanced against each other.”2 Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir.

1999). “Despite this flexibility, though, a movant must demonstrate at least some injury for a

preliminary injunction to issue, . . . for the basis of injunctive relief in the federal courts has always

been irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.

Cir. 2006).

        Thus, “[a] movant’s failure to show any irreparable harm is therefore grounds for refusing to

issue a preliminary injunction, even if the other three factors entering the calculus merit such

relief.” Id. However, even if this Court concludes that Navistar has not demonstrated irreparable

injury, the District of Columbia Circuit has instructed that it should set forth its reasoning on all four

injunction factors. See Gordon v. Holder, 632 F.3d 722, 725 (D.C. Cir. 2011).

    1. Irreparable Harm

        Navistar argues that it will suffer irreparable harm with each passing day until the EPA

produces the requested documents. Specifically, Navistar argues that it stands to suffer irreparable

harm because “(1) its competitive advantage is impaired since its competitors are able to disregard

the NOx regulations, and (2) it risks losing current and future sales because the public has been

deceived into believing that Navistar’s competitors are compliant with these



2
        It is unclear whether the sliding-scale approach remains viable after the Supreme Court's
decision in Winter v. Natural Res. Def. Council, which emphasized that irreparable injury must be
likely and not just a “possibility”, suggesting that a plaintiff must establish each of the four
factors. 129 S.Ct. 365, 375–376 (2008). However, the Court need not decide here whether the
“sliding scale” or a more stringent test applies because Navistar’s claim for an injunction fails even
under the more lenient sliding-scale analysis. See Davis v. Pension Ben. Guar Corp., 571 F.3d 1288,
1292 (D.C. Cir. 2009) (declining to address validity of sliding scale approach because plaintiffs
failed even under the more lenient sliding-scale analysis).
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regulations.” (Plaintiff’s Memorandum of Points and Authorities in Support of Plaintiff’s Motion

for Preliminary Injunction (“Pl.’s P.I. Mem.”) at 15-16).

       In order to establish that it stands to suffer irreparable injury, Navistar bears the burden of

proving that its injury is “both certain and great,” and that it is “actual and not theoretical.” Wisc.

Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam). The alleged injury must be “of

such imminence that there is a clear and present need for equitable relief to prevent irreparable

harm.” Id. (internal quotation and citations omitted) (emphasis in original). “[T]he injury must be

beyond remediation” to warrant injunctive relief. Chaplaincy of Full Gospel Churches, 454 F.3d at

297. In order to meet its burden of proving irreparable injury, Navistar “must demonstrate a causal

connection between the alleged harm and the actions to be enjoined; a preliminary injunction will

not issue unless it will remedy the alleged injuries.” Hunter Group, Inc. v. Smith, 164 F.3d 624 (4th

Cir. 1998); see Faulkner v. Jones, 10 F.3d 226, 235-36 (4th Cir. 1993) (Hamilton, J., dissenting)

(“[A]ny inquiry into the irreparable harm resulting from the denial of interim relief must necessarily

begin with an analysis of the degree to which that particular relief remedies the alleged injuries.”).

        Navistar claims it stands to suffer irreparable harm to its competitive advantage because its

competitors are able to avoid the research, development, and production costs associated with

ensuring that their products comply with the EPA standards. Navistar also claims that it risks losing

sales to competitors because customers are misled about the environmental impact of SCR

technology. Navistar’s irreparable harm arguments fail for several reasons.

       Navistar offers no evidentiary support to corroborate its claims of potential harm other than

an affidavit from Jack Allen, President of the North American Truck Group at Navistar Inc.

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However, Mr. Allen’s affidavit provides no evidence of lost sales or reduced market share, but only

makes conclusory assertions that Navistar’s risk of harm increases:

               “[f]or everyday EPA continues its preferential treatment of SCR
               technology, and continues to certify SCR-equipped engines without
               enforcing its 0.2g Standard for NOx emissions against those engines,
               the risk increases that Navistar will lose sales, market share and
               competitive position to manufacturers of urea-based SCR-equipped
               engines.”

(Allen Aff. ¶ 8). The affidavit does not specify how much economic harm Navistar has suffered, or

will stand to suffer, if an injunction does not issue. Thus, Navistar has not established that its injury

is “both certain and great”, or that there is a “clear and present need for equitable relief to prevent

irreparable harm.” Wisconsin Gas, 758 F.2d at 674.

       Furthermore, the economic losses alleged by Navistar do not constitute the type of

irreparable economic injury typically found by courts to support the entry of a preliminary

injunction. The District of Columbia Circuit has held that “[r]ecoverable monetary loss may

constitute irreparable harm only where the loss threatens the very existence of the movant’s

business.” Wisconsin Gas, 758 F.2d at 674. Navistar argues that its economic injury is irreparable

because it cannot recover its lost profits at a later date, but offers no specific, non-speculative reason

why its lost sales or reduction in market share are irreparable. “[T]o demonstrate irreparable injury,

a plaintiff must show that it will suffer harm that is more than simply irretrievable; it must also be

serious in terms of its effect on the plaintiff.” Toxco, Inc. v. Chu., 724 F. Supp. 2d 16, 31 (D.D.C.

2010). Navistar has not shown that it will suffer serious or great harm if a preliminary injunction

does not issue.



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    SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION

        Finally, Navistar has not demonstrated that a preliminary injunction will remedy its alleged

injuries. At best, an injunction ordering the EPA to disclose the requested documents could only

reveal that Navistar’s competitors have not complied with the EPA standards; it will not guarantee

subsequent compliance. Indeed, Navistar recognizes this fact as well: “[o]nce the EPA discloses the

documents requested in Navistar’s FOIA Requests, it will become apparent that Navistar’s

competitors are not compliant with the EPA standards and the CAA.” (Pl.’s P.I. at 17). Navistar

has not shown how the records it seeks will help it earn more profits or avoid losing sales to its

competitors. Because an injunction will not redress its alleged injuries, Navistar’s claim that it will

suffer irreparable harm in the absence of a preliminary injunction is tenuous at best. See Faulkner,

10 F.3d at 236 (“If the relief requested does little, if anything, to alleviate the alleged injuries, it is

difficult to comprehend how the refusal to grant that relief could cause irreparable harm.”). Based

on the foregoing, this factor weighs heavily in favor of denying the motion for a preliminary

injunction.

   2. Likelihood of success on the merits

       “It is particularly important for the movant to demonstrate a substantial likelihood of success

on the merits,” because “absent a substantial indication of likely success on the merits, there would

be no justification for the [C]ourt’s intrusion into the ordinary processes of administration and

judicial review.” Hubbard v. United States, 496 F. Supp. 2d 194, 198 (D.D.C. 2007) (internal

quotation and citation omitted). Navistar asks the Court to order the immediate production of non-

exempt documents responsive to their requests because the EPA has violated its statutory obligations




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    SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION

under the FOIA. Specifically, Navistar refers to the statutory language of the FOIA that requires

each agency, upon receipt of a FOIA request, to:

                 determine within 20 days (excepting Saturdays, Sundays, and legal
                 public holidays) after the receipt of any such request whether to
                 comply with such request and ... immediately notify the person
                 making such request of such determination and the reasons therefor,
                 and of the right of such person to appeal to the head of the agency any
                 adverse determination.


5 U.S.C. § 552(a)(6)(A)(i) (emphasis added). Navistar is unlikely to succeed on the merits of its

claim for the following reasons.

       “Notification by an agency of whether it will comply with the request is not the same thing as

delivering the requested documents.” See Spannaus v. U.S. Dep't of Justice, 824 F.2d 52, 59 n. 7

(D.C. Cir. 1987) (distinguishing between when the FBI determined whether to comply with the

request and when it delivered the documents). Thus, section 552(a)(6)(A)(i) only requires a

response to a FOIA request within the 20-day period, not production of the requested documents.

However, even if an agency fails to respond within this 20-day window, section 552(a)(6)(C)(i)

provides that:

                 [a]ny person making a request to any agency for records under
                 paragraph . . . (3) of this subsection shall be deemed to have exhausted
                 his administrative remedies with respect to such request if the agency
                 fails to comply with the applicable time limit provisions of this
                 paragraph.


5 U.S.C. § 552(a)(6)(C)(i). Therefore, even if the EPA failed to respond to Navistar’s requests by

the statutory deadline, it only entitles Navistar to constructive exhaustion of its administrative

remedies, not immediate production of the requested documents.

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       Navistar requests that the Court order the EPA to immediately produce the requested

documents, but provides no grounds to compel production on an expedited basis. Under the FOIA,

requests may be expedited upon a showing of a “compelling need,” or in such cases recognized by

the agency. See 5 U.S.C. § 552(a)(6)(E)(i)(I). The statute goes on to state that a “compelling need”

may consist of one or both of the following:

               (1) that a failure to obtain requested records on an expedited basis
                   under this paragraph could reasonably be expected to pose an
                   imminent threat to the life or physical safety of an individual; or

               (2) with respect to a request made by a person primarily engaged in
                   disseminating information, urgency to inform the public
                   concerning actual or alleged Federal Government activity.


5 U.S.C. § 552(a)(6)(E)(v); see also 40 C.F.R. § 2.104(3) (EPA’s regulation for disclosure under the

FOIA providing for expedited processing on the same two grounds). The requester bears the burden

of demonstrating a compelling need. See 5 U.S.C. § 522(a)(6)(E)(vi).

       Navistar did not make a request for expedited processing, nor did it make the make the

requisite showing to establish that expedition is appropriate. Indeed, there is nothing in the record

here to indicate that there is any compelling need to expedite Navistar’s requests. Further, even if

Navistar requested expedited processing, and the EPA granted it, the statute only requires that the

EPA “process as soon as practicable any request for records to which [they have] granted expedited

processing.” 5 U.S.C. § 552(a)(6)(E)(iii). Therefore, under no reasonable reading of the statute is

Navistar entitled to the immediate production that it seeks here.

       Plaintiff has failed to establish any likelihood of success on the merits. Because Plaintiff has

not made a substantial showing of likely success on the merits, there is little “justification for the

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court’s intrusion into the ordinary process of administration and judicial review.” Hubbard, 496 F.

Supp. 2d at 198.

    3. Harm to Defendant and Other Parties

        Navistar argues that the balance of the harms tips strongly in its favor because it is not requesting a

compressed time frame for production, but merely asking that the EPA comply with the law. Navistar’s

argument here suffers from the same weaknesses as its arguments on the previous two factors. Navistar

has not shown that the EPA has violated the FOIA. Navistar has also failed to show why it is entitled to

immediate production of requested documents—a result they could not receive under the provisions of the

FOIA. The EPA, however, has asserted that it would suffer significant hardship if it were ordered to make

an immediate production, including “forcing a huge amount of sensitive and complex work to be done on a

short time line, e.g., staffing and resource challenges, litigation risks from third-party submitters of

confidential business information, etc.” (Simon Decl. ¶ 46). Therefore, in light of the significant hardship

that the EPA would suffer if forced to make an immediate production, and because Navistar has alleged no

additional harm if the EPA were allowed to produce the documents in the usual course, the Court finds that

this factor weighs against Navistar.



    4. Public Interest

        The public interest would not be served by the Court’s entry of a preliminary

injunction. First, “it is in the public interest to deny injunctive relief when the relief is not likely

deserved under law.” Hubbard, 496 F. Supp. 2d at 203; see also Serono Labs., Inc. v. Shalala, 158

F.3d 1313, 1326 (D.C. Cir. 1998) (“The final preliminary injunction factor, the public interest, . . . is


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inextricably linked with the merits of the case.”). As previously discussed, the likelihood of success

on the merits weighs heavily against Navistar.

       Second, “[t]he usual role of a preliminary injunction is to preserve the status quo pending the

outcome of litigation.” Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C. Cir. 2006) (quotation

omitted). Here, there is no allegation that the status quo is being threatened because there is no

imminent action by the EPA with respect to the documents requested in Navistar’s FOIA

requests. Indeed, it is the EPA’s lack of action that is being complained of here. Thus, this factor

also weighs in favor of denying the plaintiff’s motion for preliminary injunction.


                                           CONCLUSION

        Navistar’s weak showing on all the injunction factors—particularly irreparable harm—

requires the Court to deny its motion. For the foregoing reasons, Navistar’s Motion for a

Preliminary Injunction is denied.

SO ORDERED.3


Date: August 25, 2011                                            /s/
                                                      ROBERT L. WILKINS
                                                      United States District Judge




3
       An order will be issued contemporaneously with this memorandum opinion denying
Navistar’s Motion for Preliminary Injunction.
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