RICARDO M. URBINA, District Judge.
The plaintiff, Toxco Inc., operates a waste disposal facility in Tennessee. It has brought this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 553 et seq., and the due process clause of the Fifth Amendment, challenging the Department of Energy's ("DOE") withdrawal of its consent to a subcontract entered into by the plaintiff. This matter is now before the court on the plaintiff's motion for a preliminary injunction and the defendant's motion to dismiss for failure to state a claim. The plaintiff seeks a preliminary injunction requiring the DOE to reinstate its consent to the plaintiff serving as a subcontractor on a DOE environmental clean-up project in Niskayuna, New York. The defendant opposes the entry of a preliminary injunction and has filed a Rule 12(b)(6) motion to dismiss. Because the plaintiff has failed to demonstrate that it will suffer irreparable harm
A. Factual Background
Until 2000, the DOE operated a research facility known as the Separation Process Research Unit ("SPRU") in Niskayuna, New York, which was used for research on the separation of atomic isotopes. Pl.'s Mot. for a Prelim. Inj. ("Pl.'s Mot.") at 3. Although the SPRU facility has been largely unused since 2000, the research performed there resulted in radioactive contamination of the facilities and the surrounding soil. Id. In October 2004, the DOE engaged Accelerated Remediation Company ("ARC") to return the site to a usable condition. Id.; Def.'s Consolidated Opp'n to Pl.'s Prelim. Inj. Mot. & Mot. to Dismiss for Failure to State a Claim ("Def.'s Mot.") at 3. The work performed by ARC was to include the removal of contaminated soils, building debris and other waste materials containing low levels of radioactive contamination and disposing of these materials at qualified locations. Pl.'s Mot. at 3.
In September 2007, the DOE issued a task order to ARC for the rehabilitation of the lower level railbed area and the lower level parking lot of the SPRU facility ("the SP-15 Task Order"). Def.'s Mot. at 3. The SP-15 Task Order made ARC responsible for disposing of any waste generated by the remediation project and authorized ARC to use "existing contractual instruments between the Federal Government and waste disposal facilities . . . when disposing of waste unless [ARC could] obtain more favorable cost arrangements." Id., Decl. of Marilyn Long ("Long Decl."), Ex. 1 at C-12.
In February 2009, the American Recovery and Reinvestment Act provided $37 million of funding to DOE to accelerate the rehabilitation of the SPRU site. Pl.'s Mot. at 4. As a result, in May 2009, ARC issued a request for subcontractors to submit proposals for the disposal of waste generated through work on the SP-15 Task Order containing low levels of radioactive contamination. Id. The plaintiff submitted a proposal in June 2009, and ARC determined that the plaintiff was the lowest-cost, qualifying bidder. Id.
The federal acquisition regulations in force at the time required agency consent for certain subcontracts entered into by a contractor without an approved purchasing system. Def.'s Mot. at 12-13. Furthermore, DOE Order 435.1 required a contractor to obtain an exemption from the DOE before disposing of radioactive waste
On August 11, 2009, the DOE provided its formal consent to the subcontract in a letter from Marilyn Long, a DOE contracting officer. See id., Aff. of David Eaker ("Eaker Aff."), Ex. 9. The same day, the plaintiff and ARC executed a subcontract for the disposal of low-level radioactive material pursuant to the SP-15 Task Order. See generally Eaker Aff., Ex. 10 ("Toxco Purchase Order"). The subcontract expressly incorporated several contractual provisions set forth in federal acquisition regulations, including Federal Acquisition Regulation ("FAR") § 52.249-2. See id. at 3. That regulation contained a contractual provision entitled "Termination for Convenience of the Government," which provided, in relevant part, that "[t]he Government may terminate performance of work under this contract in whole or, from time to time, in part if the Contracting Officer determines that a termination is in the Government's interest." 48 C.F.R. § 52.249-2(a). The provision further specified that upon the delivery of the government's notice of termination to the prime contractor, the prime contractor shall, "[w]ith approval or ratification to the extent required by the Contracting Officer, settle all outstanding liabilities and termination settlement proposals arising from the termination of subcontracts; the approval or ratification will be final for purposes of this clause." Id. § 52.249-2(b)(5).
After executing the subcontract, the plaintiff began to undertake its processing and disposal duties as set forth in the agreement. Pl.'s Mot. at 6. Yet on August 19, 2009, eight days after providing written consent to the plaintiff's subcontract, the DOE issued a notice to ARC that it had rescinded its consent to the plaintiff's subcontract. Eaker Aff., Ex. 13 at 1. The notice contained no explanation for the DOE's withdrawal of consent. See id. The withdrawal forced ARC to terminate its subcontract with the plaintiff. Pl.'s Mot. at 6-7.
B. Procedural History
The plaintiff commenced this action in October 2009, asserting that the DOE's withdrawal of consent constituted an arbitrary and capricious agency action in violation of the APA, and deprived it of property without due process of law in violation of the Fifth Amendment. See generally Compl. The plaintiff also moved for a preliminary injunction requiring the DOE to rescind its withdrawal and reinstate its consent to the plaintiff's subcontract with ARC. See generally Pl.'s Mot.
The defendant responded by filing a consolidated opposition to the plaintiff's motion for a preliminary injunction and a Rule 12(b)(6) motion to dismiss for failure to state a claim. See generally Def.'s Mot. In its motion to dismiss, the defendant argues that the plaintiff's APA claims must be dismissed because the DOE's decision to withdraw its consent was a matter committed to agency discretion by law and because the plaintiff has an alternative adequate remedy to APA review in the form of a breach of contract action against ARC. Id. at 12-14. Furthermore, the defendant argues that the plaintiff's due process claim must be dismissed because the subcontract did not give rise to a protectable property interest for Fifth Amendment purposes. Id. at 14-15.
On November 9, 2009, the plaintiff filed a document entitled "Reply Memorandum in Support of Toxco's Motion for Preliminary Injunction." See generally Pl.'s Reply. The reply memorandum made no
The plaintiff responded to the show cause order on December 4, 2009. See generally Pl.'s Response to Dec. 1, 2009 Order ("Pl.'s Resp."). In its response, the plaintiff asserted that its reply memorandum in support of its motion for a preliminary injunction had "addressed the Defendants' arguments, including substantively the arguments underlying the motion to dismiss."
On December 7, 2009, the court advised the parties that it would treat the plaintiff's response to the order to show cause and its reply memorandum in support of its motion for a preliminary injunction as its opposition to the defendant's motion to dismiss. Order (Dec. 7, 2009). The defendant subsequently filed a reply in support of its motion to dismiss. See generally Def.'s Reply. As the defendant's motion to dismiss and the plaintiff's motion for a preliminary injunction are now ripe for disposition, the court turns to the applicable legal standards and the parties' arguments.
A. The Court Denies the Defendant's Rule 12(b)(6) Motion to Dismiss
1. Legal Standard for Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir. 2003) (citing FED.R.CIV.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48, 78 S.Ct. 99 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation omitted).
Yet, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual
In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations—including mixed questions of law and fact—as true and draw all reasonable inferences therefrom in the plaintiff's favor. Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003); Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004); Browning, 292 F.3d at 242. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
2. The Court Denies the Defendant's Motion to Dismiss the Plaintiff's APA Claim
a. The Defendant Has Not Demonstrated that the DOE's Withdrawal of Consent Was a Matter Committed to Agency Discretion by Law
The defendant contends that the DOE's decision to withdraw consent to the plaintiff's subcontract is unreviewable under the APA because it was a matter committed to agency discretion by law. Def.'s Mot. at 12-13; Def.'s Reply at 2-4. According to the defendant, the regulations governing ARC's request for consent to the plaintiff's subcontract provide the DOE unfettered discretion to grant, withhold or withdraw consent to subcontracts like the one at issue here. Def.'s Mot. at 12-13; Def.'s Reply at 2-3. Because the APA does not apply to agency actions "committed to agency discretion by law," 5 U.S.C. § 701(a)(2), the defendant contends that the plaintiff's APA claim should be dismissed, Def.'s Mot. at 12-13; Def.'s Reply at 2-3.
The plaintiff does not address the defendant's § 701(a)(2) argument in its reply in support of its motion for a preliminary injunction. See generally Pl.'s Reply. Although the plaintiff does acknowledge the argument in its response to the order to show cause, it responds merely by stating that "discretion does not equal fickleness, but must reflect appropriate, non-arbitrary decision-making." Pl.'s Resp. at 4.
The APA "embodies the basic presumption of judicial review to one `suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.'" Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (citing 5 U.S.C. §§ 701-02) (internal citations omitted); see
Statutory standards need not be drawn with a high degree of specificity to fall outside the narrow bounds of § 701(a)(2). See Robbins v. Reagan, 780 F.2d 37, 45 (D.C.Cir.1985) (stating that "[w]hile the absence of clear statutory guidelines might at times hamper a court's ability to deem agency action contrary to law, it need not always do so"). As this Circuit has noted,
Id. (internal citations omitted).
These authorities make clear that when assessing whether a matter is committed to agency discretion for purposes of § 701(a)(2), the court must undertake an examination of the statutory scheme governing the agency's exercise of authority. See Webster v. Doe, 486 U.S. 592, 600, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (noting that "[b]oth Overton Park and Heckler emphasized that § 701(a)(2) requires careful examination of the statute on which the claim of agency illegality is based"); see also, e.g., Overton Park, 401 U.S. at 410-11, 91 S.Ct. 814 (concluding that the Secretary of Transportation's approval of the construction of an expressway through a public park did not fall within § 701(a)(2) because the statutes delegating that authority to the Secretary provided guidelines circumscribing the Secretary's discretion to approve projects requiring the use of public park lands); Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338, 1343 (D.C.Cir.1996) (observing, in considering whether a challenged administrative action was committed to agency discretion by law, that "[t]he key to any determination of reviewability is congressional intent"); Int'l Union, United Auto., Aerospace &
Although the defendant argues that its own regulations and guidelines place no limitations on its discretion to grant, withhold or withdraw consent to subcontracts like the one at issue, it has not identified— much less carefully examined—the legislative enactments pursuant to which the DOE granted, and then rescinded, its consent to the plaintiff's subcontract. See Def.'s Mot. at 12-13; Def.'s Reply at 2-4. Accordingly, the defendant has not demonstrated that "the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised."
b. The Defendant Has Not Demonstrated That the Plaintiff Possesses an Alternative Adequate Remedy to Judicial Review
The defendant contends that the plaintiff's APA claim must be dismissed because the APA does not provide for judicial review of agency action unless there is no other adequate remedy available to the aggrieved party. Def.'s Mot. at 13. The defendant asserts that because the plaintiff can pursue a breach of contract claim against ARC or seek relief from ARC through the "termination for
"Review under the APA is . . . limited to `final agency action for which there is no other adequate remedy in a court.'" Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C.Cir.2006) (quoting 5 U.S.C. § 704) (emphasis omitted).
It is not clear, at least at this stage of the litigation, that the "termination for convenience" provision of the subcontract provides the plaintiff an alternative adequate remedy so as to preclude review under the APA. As an initial matter, there remains some question as to the applicability of the "termination for convenience"
The court reaches a similar conclusion with respect to the availability of a breach of contract action against ARC.
In its cursory discussion of the matter, however, the defendant fails to demonstrate that the plaintiff could obtain an alternative adequate remedy through a claim against ARC, or even that such a claim is available to the plaintiff. See Def.'s Mot. at 14; Def.'s Reply at 4-5. Indeed, the defendant offers no response to the plaintiff's assertion that "ARC cannot be sued under a breach of contract claim because ARC is not responsible for DOE's withdrawal of consent to the Toxco subcontract."
3. The Court Denies the Defendant's Motion to Dismiss the Plaintiff's Due Process Claim
The defendant asserts that the plaintiff's due process claim must be dismissed because the alleged property interest
To state a claim for deprivation of property without due process of law, the plaintiff must possess a property interest that triggers the Fifth Amendment's due process protections. C & E Servs., Inc. of Wash. v. D.C. Water & Sewer Auth., 310 F.3d 197, 200 (D.C.Cir. 2002) (citing Reeve Aleutian Airways, Inc. v. United States, 982 F.2d 594, 598 (D.C.Cir.1993)). Such interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). "[T]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577, 92 S.Ct. 2701.
As noted, the defendant suggests that the plaintiff did not have a protectable property interest for Fifth Amendment purposes because the defendant was not a party to the subcontract between ARC and the plaintiff. See Def.'s Mot. at 15. The defendant, however, points to no authority indicating that only government contracts are entitled to due process protections. See id.; Def.'s Reply at 6-8. To the contrary, numerous courts have held that contracts between private parties may give rise to property interests sufficient to trigger Fifth Amendment due process protections. See Greene v. McElroy, 360 U.S. 474, 492-93 & n. 22, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) (observing that the petitioner was permitted to bring a due process challenge to the government's revocation of his security clearance, which led to the termination of his employment with a private manufacturer that contracted with the government); Wilson v. MVM, Inc., 475 F.3d 166, 178 (3d Cir.2007) (holding that a private employment contract containing a "just cause" termination clause could give rise to a constitutionally protected property interest); Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., Local 737 v. Auto Glass Employees Fed. Credit Union, 72 F.3d 1243, 1250 (6th Cir.1996) (observing that "property interests protected by the Fifth Amendment may be created by virtue of purely private contractual agreements" (citing FDIC v. Mallen, 486 U.S. 230, 240, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988); Brock v. Roadway Express, 481 U.S. 252, 260-61, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987); Greene, 360 U.S. at 492-93 & n. 22, 79 S.Ct. 1400)); see also Stein v. Bd. of City of N.Y., Bureau of Pupil Transp., 792 F.2d 13, 17 (2d Cir. 1986) (observing that "[w]here an independent source of a property interest is a private contract, the state cannot transgress on the claim of entitlement to continue
It is, of course, not the case that every contract triggers due process protections. See, e.g., Unger v. Nat'l Residents Matching Program, 928 F.2d 1392, 1398 (3d Cir. 1991) (noting that "[e]ven though every contract may confer some legal rights under state law, that fact alone need not place all contracts within federal due process protection"). Indeed, in its reply memorandum, the defendant vaguely alludes to an alternative argument for dismissal of the plaintiff's due process claim: that the subcontract did not give rise to a property interest because the government retained the authority to rescind its consent. Def.'s Reply at 7-8; see also Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (noting that "a benefit is not a protected entitlement if government officials may grant or deny it in their discretion" (citing Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 462-63, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989))); Hall v. Ford, 856 F.2d 255, 265 (D.C.Cir.1988) (dismissing the plaintiff's due process claim arising out of the termination of his employment contract on the grounds that "[t]hose who are terminable at will have no property interest because there is no objective basis for believing that they will continue to be employed indefinitely"); Roth, 408 U.S. at 577-78, 92 S.Ct. 2701 (holding that no property interest arises when a contract for a limited term of employment expires and is not renewed); Ferrone v. Onorato, 298 Fed.Appx. 138, 139-40 (3d Cir.2008) (holding that a borrower did not have a protected property interest in loan funds because the loan agreement gave the lender the discretion to grant or deny disbursement of funds). Because, however, this argument was raised for the first time in the defendant's reply memorandum, depriving the plaintiff an opportunity to respond, the court will not consider it here. See Aleutian Pribilof Islands Ass'n, Inc. v. Kempthorne, 537 F.Supp.2d 1, 12 n. 5 (D.D.C.2008) (noting that "it is a well-settled prudential doctrine that courts generally will not entertain new arguments first raised in a reply brief" (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 196 (D.C.Cir.1992))). Accordingly, the court denies the defendant's motion to dismiss the plaintiff's due process claim.
B. The Court Denies the Plaintiff's Motion for a Preliminary Injunction
1. Legal Standard for a Preliminary Injunction
This court may issue interim injunctive relief only when the movant demonstrates " that he is likely to succeed on the merits,  that he is likely to suffer irreparable harm in the absence of preliminary relief,  that the balance of equities tips in his favor, and  that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218-19, 171 L.Ed.2d 1 (2008)). It is particularly important for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992) (per curiam). Indeed, absent a "substantial indication" of likely success on the merits, "there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review." Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C.1999) (internal quotation omitted).
The other critical factor in the injunctive relief analysis is irreparable injury. A movant must "demonstrate that irreparable injury is likely in the absence of an injunction." Winter, 129 S.Ct. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Indeed, if a party fails to make a sufficient showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). Provided the plaintiff demonstrates a likelihood of success on the merits and of irreparable injury, the court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). Finally, "courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982).
As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). The Supreme Court has observed "that 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." Id. Therefore, although the trial court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted lightly. In addition, any injunction that the court issues must be carefully circumscribed and "tailored to remedy the harm shown." Nat'l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.Cir.1990).
2. The Plaintiff Has Failed to Demonstrate That It Will Suffer Irreparable Harm Absent Interim Injunctive Relief
The plaintiff contends that in the small, specialized field of hazardous materials disposal, the DOE's withdrawal of consent "immediately raises questions within the industry—and most importantly, among Toxco's customers—about the continued ability of Toxco to store and dispose of wastes." Pl.'s Mot. at 12. The plaintiff asserts that the industry will assume that safety or responsibility concerns must have led to the cancellation of the subcontract, particularly given the DOE's
The defendant counters that the plaintiff's complaints of reputational harm are too speculative to establish irreparable harm. Def.'s Mot. at 23. Furthermore, the defendant argues that the plaintiff has neither demonstrated that the withdrawal of consent from one project would bar the plaintiff from working on the North Field or any other project, nor established that the reversal of the DOE's withdrawal of consent would result in the plaintiff's selection for the North Field project. Id. at 21-22. Finally, the defendant asserts that the plaintiff's complaints of lost business are unaccompanied by a claim of any imminent threat to the survival of its business, as necessary to give rise to irreparable harm. Id. at 22.
Turning first to the plaintiff's claims of reputational harm, it is well-established that "reputational injury can be used to establish irreparable harm in certain circumstances." Trudeau v. Fed. Trade Comm'n, 384 F.Supp.2d 281, 297 (D.D.C.2005), aff'd, 456 F.3d 178 (D.C.Cir. 2006) (citing Patriot, Inc. v. U.S. Dep't of Hous. & Urban Dev., 963 F.Supp. 1, 5 (D.D.C.1997); 11A Wright, Miller & Kane, FED. PRAC. & PROC. § 2948.1). "However, as with all other forms of irreparable harm, the showing of reputational harm must be concrete and corroborated, not merely speculative." Id. (citing Bristol-Myers Squibb Co. v. Shalala, 923 F.Supp. 212, 215 (D.D.C.1996); Aeronautical Indus. Dist. Lodge 776, Int'l Ass'n of Machinists & Aerospace Workers, AFL-CIO v. Gen. Dynamics Corp., 738 F.Supp. 1038, 1041 (N.D.Tex.1990)); see also Brodie v. U.S. Dep't of Health & Human Servs., 715 F.Supp.2d 74, 84-86, 2010 WL 2222431, at *8-9 (D.D.C. June 4, 2010) (observing that "[m]erely conclusory allegations of stigma do not suffice to establish imminent injury").
The plaintiff's claims of reputational harm are based solely on the uncorroborated and speculative assertions made in an affidavit of David Eaker, one of the plaintiff's vice-presidents. See Eaker Aff. ¶¶ 33-38. Although Eaker asserts that "it is the logical and inevitable assumption" that the DOE's withdrawal of consent will raise concerns about the plaintiff's operations, id. ¶ 34, and that the absence of an explanation for the DOE's action will lead to "the assumption, within the industry, that DOE knows something they aren't telling about Toxco," id. ¶ 35, he offers nothing to substantiate his conjecture about what the industry will assume, see generally id. Likewise, although Eaker states that "[i]ndications of such [reputational] damage have already come to Toxco's attention," id. ¶ 35, he fails to specify what these "indications" are or the manner in which they indicate that the plaintiff's reputation has been harmed, see generally id.
Given the numerous factors that could have resulted in the DOE's withdrawal of consent, the plaintiff has simply not established that the industry will inevitably assume that the withdrawal of consent reflects some deficiency in the plaintiff's operations. The plaintiff does not assert that it has lost or will lose any potential or existing clients because of the withdrawal of consent and, in fact, does not
As for the plaintiff's assertions of economic harm, the court notes that plaintiff has offered little to support its claim that the DOE's withdrawal of the consent threatens its participation in any other projects. See Pl.'s Mot. at 12-13; Pl.'s Reply at 12. Like the plaintiff's allegations of reputational injury, the plaintiff's contention that the DOE's withdrawal of consent precluded it from obtaining work on the North Field project is based solely on unsupported and conclusory assertions contained in the Eaker affidavit. See Eaker Aff. ¶ 36 (stating, "I understand that ARC will continue [to] use [another company] as a waste disposal subcontractor [on the North Field project], because DOE had withdrawn consent to use Toxco"); id. ¶ 37 (stating, "Toxco is informed and believes that ARC would select it to act as subcontractor for the North Field, if DOE will permit it to do so"). Indeed, the plaintiff itself acknowledges that it "has not been debarred from all government or DOE contracting," Pl.'s Mot. at 9 n. 3 (emphasis removed), and that the DOE continues to allow the plaintiff to serve its disposal needs on other projects, id. at 8.
Moreover, even if the DOE's withdrawal did cause the plaintiff to lose the North Field project, the plaintiff has not shown that this economic loss, even if irretrievable and even when coupled with the losses resulting from the termination of the subcontract itself, is sufficiently severe so as to constitute irreparable harm. "To 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.'" Hi-Tech Pharmacal Co. v. U.S. Food & Drug Admin., 587 F.Supp.2d 1, 11 (D.D.C.2008) (quoting Gulf Oil Corp. v. Dep't of Energy, 514 F.Supp. 1019, 1026 (D.D.C.1981)); accord Robinson-Reeder v. Am. Council on Educ., 626 F.Supp.2d 11, 14 (D.D.C.2009); Sandoz, Inc. v. Food & Drug Admin., 439 F.Supp.2d 26, 31-32 (D.D.C.2006); see also Wis. Gas Co. v. Fed. Energy Regulatory Comm'n, 758 F.2d 669, 674 (D.C.Cir.1985) (noting that to warrant emergency relief, the harm must be certain, great, actual and imminent). Purely economic harm is not considered sufficiently grave under this standard unless it will "cause extreme hardship to the business, or even threaten destruction of the business." Gulf Oil, 514 F.Supp. at 1025 (observing that "some concept of magnitude of injury is implicit in the [standard for issuing a preliminary injunction]"); see also, e.g., LG Electronics, U.S.A., Inc. v. Dep't of Energy, 679 F.Supp.2d 18, 35-36 (D.D.C.2010) (stating that "[e]ven assuming [the plaintiff] will not be able to recover monetary damages from DOE . . . the financial impact [the plaintiff] claims it will suffer does not rise to the level of irreparable harm" as those losses represented "a minuscule portion of the company's worldwide revenues"); Coal. for Common Sense in Gov't Procurement v. United States, 576 F.Supp.2d 162, 169-70 (D.D.C.2008) (holding that the plaintiff's claims of lost income did not rise to the level of irreparable harm because the losses amounted to a fraction of the plaintiff's overall business); Sandoz, 439 F.Supp.2d at 32 (holding that even if the court were to credit the plaintiff's claims of $31 million in irretrievable lost sales during the pendency of the litigation, that economic loss was insufficiently severe in the context of the plaintiff's overall business operations to warrant a finding of
In this case, the plaintiff has offered no indication of the magnitude of economic harm it has suffered or will suffer as a result of the DOE's withdrawal of consent. See Pl.'s Mot. at 12-14; Pl.'s Reply at 12. The plaintiff has not provided the court with any measure of the income it has lost or will lose as a result of the termination of the subcontract or the denial of the North Field project. See Pl.'s Mot. at 12-14; Pl.'s Reply at 12. Nor has the plaintiff offered any indication of what effect these losses have had or will have on its business operations. See Pl.'s Mot. at 12-14; Pl.'s Reply at 12. Accordingly, the plaintiff has not established that its economic losses are sufficiently severe to constitute irreparable harm.
In sum, the plaintiff's claims of reputational and economic harm are insufficient to support a finding of irreparable harm. This failure, standing alone, is sufficient to warrant denial of the plaintiff's motion for a preliminary injunction. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006) (observing that "[a] movant's failure to show any irreparable harm is . . . grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief"); see also Pan Am Flight 73 Liaison Group v. Dave, 711 F.Supp.2d 13, 33, 2010 WL 1889167, at *15 (D.D.C. May 12, 2010) (holding that the plaintiff's failure to demonstrate that "it will suffer irreparable harm without an injunction, a prerequisite for the extraordinary relief it seeks" was "fatal to its request for a preliminary injunction") (citing Chaplaincy, 454 F.3d at 297).
3. The Remaining Factors Do Not Warrant Awarding Preliminary Injunctive Relief
Because the plaintiff has not demonstrated that it would suffer irreparable harm absent a preliminary injunction, the court will not undertake an extensive analysis of the remaining factors relevant to this analysis. See Chaplaincy of Full Gospel Churches, 454 F.3d at 297; Fraternal Order of Police Library of Cong. Labor Comm. v. Library of Cong., 639 F.Supp.2d 20, 25 (D.D.C.2009) (holding that "[b]ecause [the] plaintiffs cannot establish that the Merger will cause irreparable harm. . . the Court need not address the remaining preliminary injunction factors, and . . . concludes that the motions for preliminary injunctions must be denied").
The court notes, however, that the plaintiff has also failed to demonstrate a substantial likelihood of success on the merits. Although, as previously discussed, the court cannot conclude at this juncture that § 701(a)(2) and § 704 bar the plaintiff's APA claims, see supra Part III.A.2, there remains significant uncertainty as to whether the plaintiff is entitled to judicial review under the APA, given the potential availability of alternative adequate remedies and the absence of any judicially manageable standards for reviewing the DOE's withdrawal of consent,
The court has also considered the remaining factors of the preliminary injunction analysis and concludes that neither factor weighs strongly in favor of granting such relief. As for the balance of the equities, the defendant has credibly asserted that both it and the public will be harmed by the entry of a preliminary injunction because such relief would disrupt the DOE's ongoing efforts to decontaminate the SPRU facility. See Def.'s Mot. at 24. Thus, the court concludes that the plaintiff has failed to establish its entitlement to preliminary injunctive relief and denies the plaintiff's motion for a preliminary injunction.
For the foregoing reasons, the court denies the defendant's motion to dismiss and denies the plaintiff's motion for a preliminary injunction. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 20th day of July, 2010.