The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Pending before the Court is a motion for temporary restraining order and preliminary injunction by Plaintiffs Northern Air Cargo ("NAC"), Tatonduk Outfitters Ltd d/b/a Everts Air Cargo ("Everts"), and Lynden Air Cargo LLC ("Lynden") (collectively, "plaintiffs"). Plaintiffs seek to enjoin Defendant United States Postal Service (the "Postal Service") from tendering non-priority mainline bypass mail to Defendant-Intervenor Peninsula Airways, Inc. ("PenAir") on five mainline routes in rural Alaska pursuant to 39 U.S.C. § 5402(g)(5)(C) ("§ 5402(g)(5)(C)"). Specifically, plaintiffs challenge the Postal Service's purportedly ultra vires determination that PenAir had satisfied the "Prior Service and Capacity Requirement" of 39 U.S.C. § 5402(g)(1)(A)(iv)(II) ("§ 5402(g)(1)(A)(iv)(II)") as of December 3, 2010.*fn1 Plaintiffs argue that they will suffer "immediate and irreparable injury in the form of . . . substantial non-recoverable economic losses" if an immediate injunction is not granted. Pls.' Mot. at 1. Upon consideration of the motion, the responses and reply thereto, the applicable law, the arguments of counsel made during the motions hearing held on December 21, 2010, and for the following reasons, the Court hereby DENIES plaintiffs' motion for temporary restraining order and preliminary injunction.
This is the second action that plaintiffs have filed related to the Postal Service's purportedly unlawful tender of non-priority mainline bypass mail to PenAir. The first action came before the Court on November 3, 2009 as a motion for preliminary injunction (hereinafter, the "2009 Action"). See Civil Action No. 09-2065, Docket No. 5. In the 2009 Action, plaintiffs challenged the Postal Service's August 7, 2009 and September 2, 2009 determinations that PenAir was eligible for the equitable tender of non-priority mainline bypass mail on five mainline routes: Anchorage-Dillingham, Anchorage-King Salmon, Anchorage-Aniak, Anchorage-McGrath, and Anchorage-Unalakleet. With the consent of the parties, plaintiffs' motion for preliminary injunction was consolidated with a determination on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2), and the parties subsequently filed cross-motions for summary judgment. See Civil Action No. 09-2065, Minute Order dated Nov. 4, 2009.
On September 23, 2010, this Court issued an opinion granting in part and denying in part the parties' cross-motions for summary judgment.*fn3 The Court held, among other things, that the Postal Service had exceeded its statutory authority in determining that PenAir was not required to satisfy the Prior Service and Capacity Requirement of § 5402(g)(1)(A)(iv)(II) in order to be tendered non-priority mainline bypass mail pursuant to § 5402(g)(5)(C). See Northern Air Cargo, 2010 U.S. Dist. LEXIS 100757, at *29-32. The Court consequently enjoined the Postal Service from tendering non-priority mainline bypass mail to PenAir until the airline satisfied the Prior Service and Capacity Requirement of § 5402(g)(1)(A)(iv)(II). See Civil Action No. 09-2065, Order at 2. Accordingly, on September 24, 2010, the Postal Service ceased tendering non-priority mainline bypass mail to PenAir. See Postal Service's Opp'n at 6.
On October 12, 2010, PenAir submitted a new application to the Postal Service once again requesting the equitable tender of non-priority mainline bypass mail in the five mainline markets at issue in this case: Dillingham, King Salmon, Aniak, McGrath, and Unalakleet. See Postal Service's Opp'n at 6-7; Declaration of Steven Deaton ("Deaton Decl.") ¶ 3. By letter dated October 21, 2010, the Postal Service found that PenAir had satisfied the Prior Service and Capacity Requirement. See Ex. B to Deaton Decl.; see also Deaton Decl. ¶ 4 ("[T]he [Postal Service] confirmed that PenAir had satisfied the Prior Service and Capacity Requirement . . . by flying a mainline passenger aircraft between any two points within the State of Alaska for at least 12 months . . . ."). The letter also stated, however, that because "[t]he district court did not address whether PenAir should receive credit for the past 13 months in which it has been providing mainline service in Alaska . . . the actual tender of mail to PenAir may violate the court's injunction." Ex. B to Deaton Decl. Prior to tendering non-priority mainline bypass mail to PenAir, therefore, the Postal Service explained that it needed clarification from the Court regarding whether its proposed equitable tender would violate the Court's injunction. See Ex. B to Deaton Decl. ("[T]he Postal Service will immediately begin tendering mail to PenAir upon the occurrence of either of the following events: (1) the court lifts the injunction; [or] (2) PenAir obtains an appropriate clarification of (or modification to) the injunction, which, in the sole judgment of the Postal Service, makes it clear that tendering mail will not violate the court's injunction.").
On November 17, 2010, the Postal Service filed a "Motion for Order to Clarify Judgment" in the 2009 Action. See Civil Action No. 09-2065, Docket No. 38. In its motion, the Postal Service asked the Court to clarify whether it "intended to credit PenAir for the past 13 months during which it has been providing mainline passenger service in Alaska." Civil Action No. 09-2065, Postal Service's Mot. for Clarification at 2. On December 2, 2010, the Court denied the Postal Service's motion. See Civil Action No. 09-2065, Minute Order dated Dec. 2, 2010 ("After careful consideration of defendant's motion, the Court concludes that the issue on which defendant seeks clarification - 'whether PenAir should receive credit for the past 13 months during which it has been providing mainline service to Alaskans,' Def.'s Mot. at 2 - is not properly before the Court. Specifically, the Court finds that the issue presented by defendant would require the Court to entertain new factual and legal issues beyond the scope of the Court's Memorandum Opinion and Order."). Following the Court's issuance of this ruling, the Postal Service concluded that PenAir had satisfied the Prior Service and Capacity Requirement. See Deaton Decl. ¶¶ 7-8. Soon thereafter, on December 6, 2010, the Postal Service began tendering non-priority mainline bypass mail to PenAir on the five requested mainline routes. See Deaton Decl. ¶ 7.
On December 8, 2010, plaintiffs filed an emergency motion for an order to show cause why the Postal Service should not be found in contempt in the 2009 Action, arguing that the Postal Service had violated the Court's injunction by resuming tender of non-priority mainline bypass mail to PenAir. See Civil Action No. 09-2065, Docket No. 47. On that same date, plaintiffs also filed the instant action, in which it requested a temporary restraining order and preliminary injunction. The Court held a status hearing in the cases on December 9, 2010, at which time it stayed briefing on plaintiffs' motion for contempt in the 2009 Action, and entered an expedited briefing schedule in the instant case. A hearing was held on plaintiffs' motion on December 21, 2010. Plaintiffs' motion for temporary restraining order and preliminary injunction is now ripe for determination by the Court.
II. LEGAL STANDARD FOR INTERIM INJUNCTIVE RELIEF
Preliminary injunctive relief is an "extraordinary remedy never awarded as of right." Winter v. NRDC, Inc., 555 U.S. 7, 129 S. Ct. 365, 376 (2008); Munaf v. Geren, 553 U.S. 674, 128 S. Ct. 2207, 2219 (2008) ("A preliminary injunction is an extraordinary and drastic remedy[.]" (internal quotation marks omitted)). In deciding whether to grant a preliminary injunction, the Court must evaluate whether: "(1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest." Ark. Dairy Coop. Ass'n v. United States Dep't of Agric., 573 F.3d 815, 821 (D.C. Cir. 2009) (citing Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998)); see also Hall v. Daschle, 599 F. Supp. 2d 1, 3 n.2 (D.D.C. 2009) ("The same standard applies to both temporary restraining orders and to preliminary injunctions."). The moving party bears the burden of persuasion and must demonstrate, "by a clear showing," that the requested relief is warranted. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
These four factors have typically been evaluated on a "sliding scale," whereby if the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) (citing Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999)). While it is unclear whether the "sliding scale" is still controlling in light of the Supreme Court's decision in Winter, the Court need not decide this issue because plaintiffs' request for a temporary restraining order and preliminary injunction fails even under the less stringent "sliding scale" analysis of Davenport. See id. (declining, given the facts of the case, to decide if Winter created a "stricter standard" to obtain interim injunctive relief).
Plaintiffs argue that all four factors necessary to obtain interim injunctive relief "weigh strongly in favor of Plaintiffs," Pls.' Mot. at 11 n.9, while the Postal Service and PenAir argue that none of the criteria for interim injunctive relief have been met. The Court ...