Courts apply a sliding-scale approach to preliminary injunction factors where an unusually strong showing on one factor may compensate for a weaker showing on another factor.
A group of pilots sought a preliminary injunction to prevent the Pension Benefit Guaranty Corporation from implementing benefit determinations and seeking recovery or recoupment of funds. In evaluating the motion, the court applies a sliding-scale approach to the four preliminary injunction factors, where an unusually strong showing on one factor may compensate for a weaker showing on another. Because the pilots failed to demonstrate a substantial likelihood of success on the merits regarding their statutory interpretation claims and failed to establish irreparable harm—noting that recoverable economic losses generally do not constitute irreparable injury—the court affirms the denial of the injunction.
At page 1291 PBGC trustee appointment and benefit determination process244 citing cases“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.”
- Shvartser v. Lekser, 308 F. Supp. 3d 260 (D.C. Cir. 2018).published(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.)
- Seeger v. United States Dep't of Def., No. 2017-0639 (D.D.C. Mar. 30, 2018).published Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009) (“We need not decide whether a stricter standard applies.”).
- Conestoga Wood Specialties Corp. v. Sec'y of the United States Dep't of Health & Human Servs., 724 F.3d 377 (3d Cir. 2013).published (The four factors have typically been evaluated on a „sliding scale.‟ 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 facto…)
- Stand Up for California! v. U.S. Dep't of the Interior, 919 F. Supp. 2d 51 (D.D.C. 2013).published See Davis, 571 F.3d at 1295 (“Because the [plaintiffs] have failed to demonstrate either a substantial likelihood of success on the merits or irreparable harm, we affirm the district court’s denial of a preliminary injunction.”).
- Sherley v. Sebelius, 704 F. Supp. 2d 63 (D.D.C. 2010).published (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.)
- Hernandez v. Noem, No. 2025-2344 (D.D.C. July 10, 2026).published Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009), the Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), cast doubt on the propriety of that approach, see Save Jobs USA v. U.S. Dep’t of Homeland Se…
- Clayton v. Dist. of Columbia, No. 2025-1853 (D.D.C. Aug. 11, 2025).publishedCorp., 571 F.3d 1288, 1291 (D.C.
- Ahmed v. Noem, No. 2025-1351 (D.D.C. Aug. 8, 2025).published Corp., 571 F.3d 1288, 1291 (D.C.
- Mid-Atl. Equity Consortium, Inc. v. United States Dep't of Educ., 793 F. Supp. 3d 166 (D.D.C. 2025).published Corp., 571 F.3d 1288, 1291-92 (D.C.
- Klayman v. Dist. of Columbia Court of Appeals, No. 2024-2997 (D.D.C. May 28, 2025).published Corp., 571 F.3d 1288, 1291 (D.C.
Show 183 more citing cases
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- Stensvad v. Newman Ayers Ranch, 2024 MT 246, 557 P.3d 1240.publishedCircuit acknowledged that “the analysis in Winter could be read to create a more demanding burden, although the decision does not squarely discuss whether the four factors are to be balanced on a sliding scale.” Davis v. Pension Benefit Gu…
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At page 1296 Establishing likelihood of irreparable harm for injunction173 citing casesKavanaugh and Henderson, J.J., concurring
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- Stand Up for California! v. U.S. Dep't of the Interior, 919 F. Supp. 2d 51 (D.D.C. 2013).published See Davis, 571 F.3d at 1295 (“Because the [plaintiffs] have failed to demonstrate either a substantial likelihood of success on the merits or irreparable harm, we affirm the district court’s denial of a preliminary injunction.”).
- Hernandez v. Noem, No. 2025-2344 (D.D.C. July 10, 2026).published Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009), the Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), cast doubt on the propriety of that approach, see Save Jobs USA v. U.S. Dep’t of Homeland Se…
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- Am. Foreign Serv. Ass'n v. Trump, No. 2025-1030 (D.D.C. May 14, 2025).published Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) (quoting Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999)); accord Damus v. Nielsen, 313 F. Supp. 3d 317, 326 (D.D.C. 2018).
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- Nat'l Treasury Employees Union v. Donald J. Trump, No. 2025-0935 (D.D.C. Apr. 28, 2025).published Corp., 571 F.3d 1288, 1291-92 (D.C.
- Hinge v. Lyons, No. 2025-1097 (D.D.C. Apr. 15, 2025).published Corp., 571 F.3d 1288, 1291 (D.C.
- Nat'l Treasury Employees Union v. Vought, 774 F. Supp. 3d 1 (D.D.C. 2025).publishedCorp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring). 18 Whatever the status of the sliding scale analysis might be, the D.C. Circuit has clearly stated that a failure to show a likelihood of success on the merits is suf…
- Dellinger v. Bessent, 766 F. Supp. 3d 57 (D.D.C. 2025).publishedCorp., 571 F.3d 1288, 1296 (D.C.
- State of Indiana v. Haaland, No. 2024-1665 (D.D.C. Dec. 24, 2024).published Corp., 571 F.3d 1288, 1291 (D.C.
- 1306 Lounge, LLC v. Small Bus. Admin., No. 2022-3320 (D.D.C. Dec. 5, 2024).published Corp., 571 F.3d 1288, 1291 (D.C.
- Sierra Club v. Tenn. Dep't of Env't, No. 23-3682 (6th Cir. Oct. 11, 2024).unpublishedCorp., 571 F.3d 1288, 1296 (D.C.
- Bailey v. Fed. Bureau of Prisons, No. 2024-1219 (D.D.C. June 28, 2024).published Corp., 571 F.3d 1288, 1291-92 (D.C.
- Giri v. Nat'l Bd. of Med. Examiners, 718 F. Supp. 3d 30 (D.D.C. 2024).published Corp., 571 F.3d 1288, 1291 (D.C.
- Fort Myer Constr. Corp. v. Shrensky, No. 2023-2275 (D.D.C. Jan. 17, 2024).publishedCorp., 571 F.3d 1288, 1296 (2009) (Kavanaugh, J., concurring) (observing that, after Winter, “the old sliding-scale approach to preliminary injunctions—under which a very strong likelihood of success could make up for a failure to show a l…
- Robert Gordon v. Eric Holder, Jr., 721 F.3d 638 (D.C. Cir. 2013).published
- Lofton Ex Rel. T.C. v. Dist. of Columbia, 7 F. Supp. 3d 117 (D.D.C. 2013).published
- Sweis v. United States Foreign Claims Settlement Comm'n, 950 F. Supp. 2d 44 (D.D.C. 2013).published
- Bloomberg L.P. v. United States Commodity Futures Trading Comm'n, 949 F. Supp. 2d 91 (D.D.C. 2013).published
- Mylan Labs. Ltd. v. Food & Drug Admin., 910 F. Supp. 2d 299 (D.D.C. 2012).published
- Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012).published
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- Cardinal Health, Inc. v. Holder, 846 F. Supp. 2d 203 (D.D.C. 2012).published
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- Converdyn v. Moniz, 68 F. Supp. 3d 34 (D.D.C. 2014).published
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- Mott Thoroughbred Stables, Inc. v. Rodriguez, 87 F. Supp. 3d 237 (D.D.C. 2015).published
- Singh v. Carter, 185 F. Supp. 3d 11 (D.D.C. 2016).published
- Newark Pre-Sch. Council, Inc. v. United States Dep't of Health & Human Servs., 201 F. Supp. 3d 72 (D.D.C. 2016).published
- Reinhard v. Johnson, 209 F. Supp. 3d 207 (D.D.C. 2016).published
- Morales v. Sec'y, U.S. Dep't of Homeland Sec., 220 F. Supp. 3d 1 (D.D.C. 2016).published
- Catharsis on the Mall, LLC v. Jewell, 217 F. Supp. 3d 154 (D.D.C. 2016).published
- Gold v. Maurer, 251 F. Supp. 3d 127 (D.D.C. 2017).published
- Allied Progress v. Consum. Fin. Prot. Bureau, No. 2017-0686, 2017 WL 1750263 (D.D.C. May 4, 2017).published
- Lawyers' Comm. for Civil Rights Under Law v. Presidential Advisory Comm'n on Election Integrity, No. 2017-1354 (D.D.C. July 18, 2017).published
- Am. Civil Liberties Union v. Trump, 266 F. Supp. 3d 133 (D.D.C. 2017).published
- Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity, 266 F. Supp. 3d 297 (D.D.C. 2017).published
- Doe v. Trump, 275 F. Supp. 3d 167 (D.D.C. 2017).published
- Bent v. Talkin, 280 F. Supp. 3d 107 (D.D.C. 2017).published
- 12 Percent Logistics, Inc. v. Unified Carrier Reg. Plan Bd., 280 F. Supp. 3d 118 (D.D.C. 2017).published
- Kimberly-Clark Corp. v. Dist. of Columbia, No. 2017-1901 (D.D.C. Dec. 22, 2017).published
- Heart 6 Ranch, LLC v. Zinke, No. 2017-2711 (D.D.C. Jan. 4, 2018).published
- Cayuga Nation v. Zinke, No. 2017-1923 (D.D.C. Mar. 27, 2018).published
- Thorp v. Dist. of Columbia, No. 2018-1071 (D.D.C. June 22, 2018).published
- Damus v. Nielsen, No. 2018-0578, 2018 WL 3232515 (D.D.C. July 2, 2018).published
- Jacinto-Castanon De Nolasco v. U.S. Immigr. & Customs Enf't, No. 2018-1536 (D.D.C. July 19, 2018).published
- Baker v. Consum. Fin. Prot. Bureau, No. 2018-2403, 2018 WL 5723146 (D.D.C. Nov. 1, 2018).published
- Wang v. Pompeo, No. 2018-1732 (D.D.C. Dec. 6, 2018).published
- Brown v. Pennsylvania Higher Educ. Agency, No. 2019-0979 (D.D.C. May 14, 2019).published
- Ctr. for Pub. Integrity v. U.S. Dep't of Def., No. 2019-3265 (D.D.C. Nov. 25, 2019).published
- Whitman-Walker Clinic, Inc. v. U.S. Dep't of Health & Human Servs., 485 F. Supp. 3d 1 (D.D.C. 2020).published
- Frederick Douglass Found., Inc. v. Dist. of Columbia, No. 2020-3346, 2021 WL 1166841 (D.D.C. Mar. 26, 2021).published
- Changji Esquel Textile Co. Ltd. v. Raimondo, 573 F. Supp. 3d 104 (D.D.C. 2021).published
- Petty v. Am. Fed'n of Gov't Employees, No. 2021-3161 (D.D.C. Dec. 10, 2021).published
- Petty v. Am. Fed'n of Gov't Employees, No. 2021-3161 (D.D.C. Dec. 17, 2021).published
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- Paracha v. Biden, No. 2021-2567 (D.D.C. Mar. 2, 2022).published
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- Hudson v. Am. Fed'n of Gov't Employees, No. 2022-0289 (D.D.C. Apr. 20, 2022).published
- Navy Seal 1 v. Austin, 600 F. Supp. 3d 1 (D.D.C. 2022).published
- Creaghan v. Austin, No. 2022-0981 (D.D.C. May 12, 2022).published
- Daily Caller v. U.S. Dep't of State, 152 F. Supp. 3d 1 (D.D.C. 2015).published
- Arriva Med. LLC v. United States Dep't of Health & Human Servs., 239 F. Supp. 3d 266 (D.D.C. 2017).published
- Huntco Pawn Holdings, LLC v. U.S. Dep't of Def., 240 F. Supp. 3d 206 (D.D.C. 2016).published
- Lawyers' Comm. for Civil Rights Under Law v. Presidential Advisory Comm'n on Election Integrity, 265 F. Supp. 3d 54 (D.C. Cir. 2017).published
- Heart 6 Ranch, LLC v. Zinke, 285 F. Supp. 3d 135 (D.C. Cir. 2018).published
- Dunlap v. Presidential Advisory Comm'n on Election Integrity, 286 F. Supp. 3d 96 (D.C. Cir. 2017).published
- Chapman v. Heath, 288 F. Supp. 3d 215 (D.C. Cir. 2018).published
- Nation v. Zinke, 302 F. Supp. 3d 362 (D.C. Cir. 2018).published
- Parham v. Dist. of Columbia, 648 F. Supp. 3d 99 (D.D.C. 2022).published
- Heritage Found. v. U.S. Env't Prot. Agency, No. 2023-0748 (D.D.C. Apr. 14, 2023).published
- Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011).published
- Goings v. Court Servs. & Offender Supervision Agency, 786 F. Supp. 2d 48 (D.D.C. 2011).published
- ['guttenberg v. Emery'], 26 F. Supp. 3d 88 (D.D.C. 2014).published
- Hadjarab v. Bush, 953 F. Supp. 2d 213 (D.D.C. 2013).published
- Am. Freedom Def. Initiative v. Washington Metro. Area Transit Auth., 898 F. Supp. 2d 73 (D.D.C. 2012).published
- Goings v. Court Servs. & Offender Supervision Agency for the Dist. of Columbia, No. 2011-0501 (D.D.C. May 3, 2011).published
- Achagzai v. Broad. Bd. of Governors, No. 2014-0768, 2016 WL 471274 (D.D.C. Feb. 8, 2016).published
- Muvvala v. Wolf, No. 2020-2423, 2020 WL 5748104 (D.D.C. Sept. 25, 2020).published
- Sanofi-Aventis U.S. LLC v. Food & Drug Admin., 733 F. Supp. 2d 162 (D.D.C. 2010).published
- LG Elec. U.S.A., Inc. v. United States Dep't of Energy, 679 F. Supp. 2d 18 (D.D.C. 2010).published
- Hill Dermaceuticals, Inc. v. U.S. Food & Drug Admin., 826 F. Supp. 2d 252 (D.D.C. 2011).published
- Elec. Privacy Info. Ctr. v. Dep't of Just., 15 F. Supp. 3d 32 (D.D.C. 2014).published
- Sierra Club v. United States Army Corps of Engineers, 990 F. Supp. 2d 9 (D.D.C. 2013).published
- Am. Meat Inst. v. United States Dep't of Agric., 968 F. Supp. 2d 38 (D.D.C. 2013).published
- Chevron Corp. v. Salazar, Misc. No. 2011-0409 (D.D.C. Sept. 15, 2011).published
- True the Vote, Inc. v. Internal Revenue Serv., No. 2013-0734, 2014 WL 4347197 (D.D.C. Aug. 7, 2014).published
- Singh v. McConville, 187 F. Supp. 3d 152 (D.D.C. 2016).published
- Planned Parenthood Ass'n v. Herbert, 828 F.3d 1245 (10th Cir. 2016).published
- Tk Servs., Inc. v. Rwd Consulting, LLC, 263 F. Supp. 3d 64 (D.D.C. 2017).published
- Friends of the Capital Crescent Trail v. Fed. Transit Admin., 263 F. Supp. 3d 144 (D.D.C. 2017).published
- Archdiocese of Washington v. Washington Metro. Area Transit Auth., No. 2017-2554 (D.D.C. Dec. 8, 2017).published
- Doe v. Mattis, No. 2017-2069 (D.D.C. Jan. 23, 2018).published
- Garcia Ramirez v. U.S. Immigr. & Custom Enf't, No. 2018-0508 (D.D.C. Apr. 18, 2018).published
- California Ass'n of Private Postsecondary Schs. v. Devos, No. 2017-0999 (D.D.C. Oct. 16, 2018).published
- Pinson v. United States Dep't of Just., No. 2018-0486, 2018 WL 5464706 (D.D.C. Oct. 29, 2018).published
- Damien Guedes v. ATF, No. 19-5042 (D.C. Cir. Apr. 1, 2019).published
- Jubilant Draximage Inc. v. United States Int'l Trade Comm'n, No. 2019-1494 (D.D.C. July 10, 2019).published
- Application of the Comm. on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, No. 2019-0048 (D.D.C. Oct. 29, 2019).published
- Dist. of Columbia v. U.S. Dep't of Agric., No. 2020-0119 (D.D.C. Mar. 13, 2020).published
- Pinson v. United States Dep't of Just., No. 2018-0486, 2020 WL 1509517 (D.D.C. Mar. 30, 2020).published
- Asante v. Azar, No. 2020-0601 (D.D.C. Apr. 21, 2020).published
- Confederated Tribes of the Chehalis Reservation v. Mnuchin, 456 F. Supp. 3d 152 (D.D.C. 2020).published
- Nat'l Immigr. Proj. of the Nat'l Lawyers Guild v. Exec. Off. of Immigr. Review, No. 2020-0852 (D.D.C. Apr. 28, 2020).published
- Thatikonda v. United States Citizenship & Immigr. Servs., No. 2019-0685 (D.D.C. May 5, 2020).published
- C.G.B. v. Wolf, 464 F. Supp. 3d 174 (D.D.C. 2020).published
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- In the Matter of the Fed. Bureau of Prisons' Execution Protocol Cases, Misc. No. 2019-0145 (D.D.C. July 13, 2020).published
- In the Matter of the Fed. Bureau of Prisons' Execution Protocol Cases, Misc. No. 2019-0145 (D.D.C. July 15, 2020).published
- Nat'l Fed'n of the Blind v. Saul, No. 2020-1160 (D.D.C. July 22, 2020).published
- Commonwealth of Pennsylvania v. Devos, 480 F. Supp. 3d 47 (D.D.C. 2020).published
- Pinson v. United States Dep't of Just., No. 2018-0486 (D.D.C. Sept. 17, 2020).published
- In the Matter of the Fed. Bureau of Prisons' Execution Protocol Cases, Misc. No. 2019-0145 (D.D.C. Sept. 20, 2020).published
- Tiktok Inc. v. Trump, 507 F. Supp. 3d 92 (D.D.C. 2020).published
- Jubilant Draximage Inc. v. United States Int'l Trade Comm'n, 490 F. Supp. 3d 169 (D.D.C. 2020).published
- Medinatura v. Food & Drug Admin., 496 F. Supp. 3d 416 (D.D.C. 2020).published
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- Milligan v. Pompeo, 502 F. Supp. 3d 302 (D.D.C. 2020).published
- Turner v. U.S. Agency for Global Media, 502 F. Supp. 3d 333 (D.D.C. 2020).published
- Garcia Uranga v. U.S. Citizenship & Immigr. Servs., No. 2020-0521 (D.D.C. Dec. 8, 2020).published
- In the Matter of the Fed. Bureau of Prisons' Execution Protocol Cases, Misc. No. 2019-0145 (D.D.C. Jan. 12, 2021).published
- In the Matter of the Fed. Bureau of Prisons' Execution Protocol Cases, Misc. No. 2019-0145 (D.D.C. Jan. 13, 2021).published
- Nigerians in Diaspora Org. Americas v. Key, No. 2019-3015 (D.D.C. Mar. 3, 2021).published
- Medinatura v. Food & Drug Admin., No. 2020-2066 (D.D.C. Mar. 16, 2021).published
- Safex Found., Inc. v. Safeth, Ltd., No. 2021-0161 (D.D.C. Mar. 26, 2021).published
- Rosenkrantz v. Inter-Am. Dev. Bank, No. 2020-3670 (D.D.C. Apr. 5, 2021).published
- New York Times Co. v. Def. Health Agency, No. 2021-0566, 2021 WL 1614817 (D.D.C. Apr. 25, 2021).published
- Shaw v. Esper, No. 2020-2036 (D.D.C. May 7, 2021).published
- Adams ex rel. T.J. v. Dist. of Columbia, 285 F. Supp. 3d 381 (D.C. Cir. 2018).published
- Doe v. Mattis, 288 F. Supp. 3d 195 (D.C. Cir. 2018).published
- Jacinto-Castanon De Nolasco v. U.S. Immigr. & Customs Enf't, 319 F. Supp. 3d 491 (D.C. Cir. 2018).published
- M.G.U. v. Nielsen, 325 F. Supp. 3d 111 (D.C. Cir. 2018).published
- Feng Wang v. Pompeo, 354 F. Supp. 3d 13 (D.C. Cir. 2018).published
- Angelo v. Dist. of Columbia, 648 F. Supp. 3d 116 (D.D.C. 2022).published
- Ready for Ron v. Fed. Election Comm'n, No. 2022-3282 (D.D.C. May 17, 2023).published
- Ayele v. Dist. of Columbia, 704 F. Supp. 3d 231 (D.D.C. 2023).published
- Wrenn v. Dist. of Columbia, 167 F. Supp. 3d 86 (D.D.C. 2016).published
- Jericho Baptist Church Ministries, Inc. v. Jericho Baptist Church Ministries, Inc., No. 2016-0647 (D.D.C. Aug. 25, 2016).published
- Gerber Prods. Co. v. Vilsack, No. 2016-1696 (D.D.C. Sept. 9, 2016).published
- Dunlap v. Presidential Advisory Comm'n on Election Integrity, No. 2017-2361, 2018 WL 3150217 (D.D.C. June 27, 2018).published
- Robert Half Int'l Inc. v. Billingham, No. 2018-1001 (D.D.C. June 29, 2018).published
- Heredia Mons v. McAleenan, No. 2019-1593, 2019 WL 4225322 (D.D.C. Sept. 5, 2019).published
- Agua Caliente Band of Cahuilla Indians v. Mnuchin, No. 2020-1136, 2020 WL 2331774 (D.D.C. May 11, 2020).published
- S. Poverty Law Ctr. v. U.S. Dep't of Homeland Sec., No. 2018-0760 (D.D.C. June 17, 2020).published
- Pate v. Fed. High. Admin., No. 2020-2188 (D.D.C. Aug. 17, 2020).published
- Virtus Pharm., LLC v. Garland, No. 2021-2308 (D.D.C. Sept. 22, 2021).published
- Pushkar v. Blinken, No. 2021-2297, 2021 WL 4318116 (D.D.C. Sept. 23, 2021).published
- Omori v. Blinken, No. 2021-2173 (D.D.C. Sept. 30, 2021).published
- Church v. Biden, 573 F. Supp. 3d 118 (D.D.C. 2021).published
- Kimberly-Clark Corp. v. Dist. of Columbia, 286 F. Supp. 3d 128 (D.C. Cir. 2017).published
- Hudson v. Am. Fed'n of Gov't Emps., 292 F. Supp. 3d 145 (D.C. Cir. 2017).published
- Damus v. Nielsen, 313 F. Supp. 3d 317 (D.C. Cir. 2018).published
- Robert Half Int'l Inc. v. Billingham, 315 F. Supp. 3d 419 (D.C. Cir. 2018).published
- Thorp v. Dist. of Columbia, 317 F. Supp. 3d 74 (D.C. Cir. 2018).published
- Dunlap v. Presidential Advisory Comm'n on Election Integrity, 319 F. Supp. 3d 70 (D.C. Cir. 2018).published
- Dehghanighanatghestani v. Mesquita, No. 2022-2595, 2022 WL 4379061 (D.D.C. Sept. 22, 2022).published
- Tesfaye v. Blinken, No. 2022-0411 (D.D.C. Sept. 28, 2022).published
- Tesfaye v. Blinken, No. 2022-0411 (D.D.C. Sept. 29, 2022).published
- Americans for Immigrant Just. v. U.S. Dep't of Homeland Sec., No. 2022-3118 (D.D.C. Feb. 1, 2023).published
- Nat'l Ass'n for Fixed Annuities v. United States Dep't of Labor, 219 F. Supp. 3d 10 (D.D.C. 2016).published
At page 1292 Balancing factors for preliminary injunction likelihood of success136 citing cases“the movant has the burden to show that all four factors ... weigh in favor of the injunction.”
- Seeger v. United States Dep't of Def., No. 2017-0639 (D.D.C. Mar. 30, 2018).published (We need not decide whether a stricter standard applies.)
- Aba, Inc. v. Dist. of Columbia, 40 F. Supp. 3d 153 (D.D.C. 2014).published ([M]ovant has the burden to show that all four factors ... weigh in favor of the injunction.)
- Hani Abdullah v. Barack Obama, 753 F.3d 193 (D.C. Cir. 2014).published ([Tjhe movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.)
- Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, No. 2006-0903 (D.D.C. Apr. 12, 2010).published (But Holiday Tours did not eliminate the other factors. The court simply acknowledged that a lessor likelihood of success might suffice if each of the other three factors clearly favors granting the injunction.)
- Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 704 F. Supp. 2d 50 (D.D.C. 2010).published (But Holiday Tours did not eliminate the other factors. The court simply acknowledged that a lessor likelihood of success might suffice if each of the other three factors clearly favors granting the injunction.)
- Advanta Bank v. Fed. Deposit Ins., 684 F. Supp. 2d 17 (D.D.C. 2010).published (But Holiday Tours did not eliminate the other factors. The court simply acknowledged that a lessor likelihood of success might suffice if each of the other three factors clearly favors granting the injunction.)
- Advanta Bank v. Fed. Deposit Ins. Corp., No. 2009-2423 (D.D.C. Feb. 24, 2010).published (But Holiday Tours did not eliminate the other factors. The court simply acknowledged that a lessor likelihood of success might suffice if each of the other three factors clearly favors granting the injunction.)
- Seeger v. U.S. Dep't of Def., 306 F. Supp. 3d 265 (D.C. Cir. 2018).published“we need not decide whether a stricter standard applies.”
- Heritage Found. v. DOJ, No. 26-5235 (D.C. Cir. July 21, 2026).publishedCorp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).
- Fonds Des Missions v. Unitedhealth Grp. Inc., No. 2026-0970 (D.D.C. Apr. 15, 2026).publishedCorp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). 8 A permanent injunction, similarly, “is a drastic and extraordinary remedy.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010).
Show 122 more citing cases
- Vera Inst. of Just. v. U.S. Dep't of Just., No. 2025-1643, 2025 WL 1865160 (D.D.C. July 7, 2025).publishedCorp., 571 F.3d 1288, 1292 (D.C.
- Crowe v. Fed. Bureau of Prisons, No. 2024-3582, 2025 WL 1635392 (D.D.C. June 9, 2025).publishedSee, e.g., id.; Davis v. Pension Benefit Guaranty Corp., 571 F.3d 1288, 1292 (D.C.
- Corp. for Pub. Broad. v. Trump, No. 2025-1305 (D.D.C. June 8, 2025).publishedCorp., 571 F.3d 1288, 1292 (D.C.
- Chazz Clevinger v. Advocacy Holdings, Inc., 134 F.4th 1230 (D.C. Cir. 2025).publishedPoe, 144 S. Ct. 921 , 929 (2024) (Kavanaugh, J., concurring) (“If the moving party has not demonstrated irreparable harm, then this Court can avoid delving into the merits.”).3 So the district court 2 See, e.g., Davis v. Pension Benefit Gu…
- League of United Latin Am. Citizens v. Exec. Off. of the President, No. 2025-0946 (D.D.C. Apr. 24, 2025).publishedCorp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)).
- All. for Retired Americans v. Bessent, No. 2025-0313, 2025 WL 740401 (D.D.C. Mar. 7, 2025).publishedCorp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)).
- Doe v. Off. of Pers. Mgmt., 109 M.S.P.R. 86 (D.D.C. 2025).publishedCorp., 571 F.3d 1288, 1292 (D.C.
- Bricklayers & Trowel Trades Int'l Pension Fund v. Atco Masonry LLC, No. 2024-1037 (D.D.C. Feb. 12, 2025).publishedCorp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).
- Stensvad v. Newman Ayers Ranch, 2024 MT 246, 557 P.3d 1240.published“the analysis in Winter could be read to create a more demanding burden, although the decision does not squarely discuss whether the four factors are to be balanced on a sliding scale”
- Signal Peak Energy, LLC v. Haaland, No. 2024-0366, 2024 WL 3887386 (D.D.C. Aug. 21, 2024).publishedCorp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)).
- MP Pph LLC, No. 23-00246 (Bankr. D.D.C. Mar. 12, 2024).Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009). 65 Nat’l Org. for Women, Wash. D.C. Chapter v. Soc.
- United States v. Sum of $70,990,605, 991 F. Supp. 2d 154 (D.D.C. 2013).published
- Sierra Club v. United States Dep't of Energy, 825 F. Supp. 2d 142 (D.D.C. 2011).published
- Klayman v. Obama, 142 F. Supp. 3d 172 (D.D.C. 2015).published
- Reinhard v. Johnson, 209 F. Supp. 3d 207 (D.D.C. 2016).published
- Morales v. Sec'y, U.S. Dep't of Homeland Sec., 220 F. Supp. 3d 1 (D.D.C. 2016).published
- Catharsis on the Mall, LLC v. Jewell, 217 F. Supp. 3d 154 (D.D.C. 2016).published
- Gold v. Maurer, 251 F. Supp. 3d 127 (D.D.C. 2017).published
- Allied Progress v. Consum. Fin. Prot. Bureau, No. 2017-0686, 2017 WL 1750263 (D.D.C. May 4, 2017).published
- Lawyers' Comm. for Civil Rights Under Law v. Presidential Advisory Comm'n on Election Integrity, No. 2017-1354 (D.D.C. July 18, 2017).published
- Am. Civil Liberties Union v. Trump, 266 F. Supp. 3d 133 (D.D.C. 2017).published
- Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity, 266 F. Supp. 3d 297 (D.D.C. 2017).published
- Doe v. Trump, 275 F. Supp. 3d 167 (D.D.C. 2017).published
- Bent v. Talkin, 280 F. Supp. 3d 107 (D.D.C. 2017).published
- Cayuga Nation v. Zinke, No. 2017-1923 (D.D.C. Mar. 27, 2018).published
- Bhm Healthcare Solutions, Inc. v. Urac, Inc., No. 2018-1119 (D.D.C. July 20, 2018).published
- Baker v. Consum. Fin. Prot. Bureau, No. 2018-2403, 2018 WL 5723146 (D.D.C. Nov. 1, 2018).published
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At page 1295 Determining irreparable harm for economic losses33 citing casesexplaining that the "old sliding-scale approach" may no longer be controlling
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- Yazdan Pouri v. United States Dep't of Homeland Sec., No. 2026-1339 (D.D.C. May 30, 2026).published“in the absence of special circumstances, . . . recoverable economic losses are not considered irreparable”
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- BHM Healthcare Solutions, Inc. v. URAC, Inc., 320 F. Supp. 3d 1 (D.C. Cir. 2018).published
- Allina Health Servs. v. Sebelius, 756 F. Supp. 2d 61 (D.D.C. 2010).published
- Toxco Inc. v. Chu, 724 F. Supp. 2d 16 (D.D.C. 2010).published
- Edwards v. Dist. of Columbia, 765 F. Supp. 2d 3 (D.D.C. 2011).published
- Davis v. Pension Benefit Guar. Corp., 734 F.3d 1161 (D.C. Cir. 2013).published
- Thomas Davis v. P.B.G.C., No. 12-5274 (D.C. Cir. Nov. 1, 2013).published
- Geo Specialty Chemicals, Inc. v. Husisian, 923 F. Supp. 2d 143 (D.D.C. 2013).published
- Brown v. Dist. of Columbia, 888 F. Supp. 2d 28 (D.D.C. 2012).published
- Eley v. Dist. of Columbia, 47 F. Supp. 3d 1 (D.D.C. 2014).published
- Nat'l Ass'n of Letter Carriers v. United States Postal Serv., No. 2019-2617 (D.D.C. Nov. 6, 2019).published
- Open Tech. Fund v. Pack, 470 F. Supp. 3d 8 (D.D.C. 2020).published
- J. Conrad LTD v. United States, 457 F. Supp. 3d 1365 (Ct. Intl. Trade 2020).published
- George v. George Washington Univ., No. 2022-0896 (D.D.C. May 27, 2022).published
- Sec. Indus. & Fin. Markets Ass'n v. United States Commodity Futures Trading Comm'n, 67 F. Supp. 3d 373 (D.D.C. 2014).published
- Robertson v. Cartinhour, 429 F. App'x 1 (D.C. Cir. 2011).unpublished
- Nat'l Council of Agric. Employers v. United States Dep't of Labor, No. 2022-3569 (D.D.C. Feb. 16, 2023).published
- Huisha-Huisha v. Gaynor, No. 2021-0100 (D.D.C. Sept. 16, 2021).published
At page 1293 Applying chevron deference to agency interpretation of statute5 citing cases“to the pbgc's authoritative and reasonable interpretations of ambiguous provisions of erisa.”
- Vanderkam v. Pension Benefit Guar. Corp., 943 F. Supp. 2d 130 (D.D.C. 2013).published
- Davis v. Pension Benefit Guar. Corp., 864 F. Supp. 2d 148 (D.D.C. 2012).published
- Lewis v. Pension Benefit Guar. Corp., No. 2015-1328 (D.D.C. June 11, 2018).published
- K. Lewis v. P.B.G.C., No. 19-5261 (D.C. Cir. Dec. 7, 2020).unpublished
- Joseph Fisher v. P.B.G.C., 994 F.3d 664 (D.C. Cir. 2021).published
v.
PENSION BENEFIT GUARANTY CORPORATION, Appellee
Lead Opinion
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Circuit Judge KAVANAUGH, with whom Circuit Judge HENDERSON joins.
BROWN, Circuit Judge.Approximately 1,700 U.S. Airways current and retired pilots are in the midst of a lawsuit challenging benefit determinations of the Pension Benefit Guaranty Corporation (“PBGC”). A subset of 111 plaintiffs (“the pilots”) requested a preliminary injunction to prohibit the PBGC from implementing its benefit determinations while the suit is pending. After considering the four factors for a preliminary injunction, the district court denied the motion. Because the pilots show neither a substantial likelihood of success on the merits nor irreparable harm, we affirm.
I. Background
On August 11, 2002, U.S. Airways filed for Chapter 11 reorganization in the bankruptcy court for the Eastern District of Virginia. See generally In re U.S. Airways Group, Inc., 296 B.R. 734 (Bankr. E.D.Va.2003). The bankruptcy court found the reorganization plan would create “a serious funding shortfall for the [company’s] defined benefit pension plan.” Id. at 738. The company moved for judicial findings to permit distress termination of the pilots’ retirement plan and notified the PBGC of its intent to terminate the plan. The bankruptcy court approved distress termination, and U.S. Airways agreed with the PBGC to set March 31, 2003 as the termination date of the plan.
The PBGC is a federal government corporation — created by the Employee Retirement Income Security Act of 1974 (“ERISA”) — that insures private sector defined-benefit pension plans. See 29 U.S.C. § 1302. The PBGC acts as guarantor of underfunded pension plans, paying benefits to participants such as the pilots in this action. See id. § 1322. When a plan is underfunded, the PBGC’s benefit payments are subject to statutory and regulatory limits. See, e.g., id. §§ 1322, 1361;[*1271] 29 C.F.R. § 4044.13. ERISA permits the PBGC to serve as trustee to administer an underfunded plan in addition to its role as guarantor. 29 U.S.C. § 1342(b). The PBGC has applied to serve as trustee in every terminated plan, and courts typically grant its application. Pineiro v. PBGC, 318 F.Supp.2d 67, 72 (S.D.N.Y.2003). Following this pattern, the PBGC was appointed to serve as trustee of the U.S. Airways retirement plan.
Under its usual practice, the PBGC began making initial payments to pilots based on an estimate of what the benefits would be. See Boivin v. U.S. Airways, Inc., 297 F.Supp.2d 110, 114 (D.D.C.2003). The parties agree that it normally takes the PBGC between two and three years to make a final, formal determination of benefits for each participant. See id. Without waiting for the final determination, a group of pilots challenged the estimated benefits. This court dismissed the claim for failure to exhaust, holding the pilots must await the final determination. Boivin v. U.S. Airways, Inc., 446 F.3d 148, 158-59 (D.C.Cir.2006).
When a final benefits determination differs from the estimate, the PBGC either repays the shortfall or collects the surplus. If a participant was initially paid a lump-sum estimate and the PBGC later determined the estimate to be too high, it requests repayment of the surplus amount in a process it calls “recovery.” If a participant is still receiving monthly benefit payments based on an initial estimate but the PBGC has determined that the estimate was too high, it reduces the amount of future monthly payments to recover the surplus in a process it calls “recoupment.”
In February 2008, the PBGC finalized its formal benefit determinations and notified 111 out of the 1,700 plaintiffs that it would be seeking recovery or recoupment, depending on the circumstance. According to the PBGC, of the 111 pilots, 74 were sent recovery notices. Jones Deck at 4. Those 74 pilots, on average, received lump-sum payments of over $680,000. Id. On average, the PBGC is seeking $7,049.67 in recovery, and no pilot’s recovery amount is more than 1.53% of the initial lump-sum amount. Id. The other 37 pilots are still receiving monthly payments; as to them, the PBGC is seeking an average recoupment of $59.86 per month. Id. No pilot’s recoupment is more than 10% of their current monthly payment. Id.
The 111 pilots sought a preliminary injunction against the PBGC’s recovery and recoupment efforts. The district court denied the injunction, Davis v. PBGC, 596 F.Supp.2d 1, 5 (D.D.C.2008), and we affirm.
II. Standard of Review
The denial (or grant) of a preliminary injunction is classified as an immediately appealable interlocutory order. 28 U.S.C. § 1292(a)(1). On a motion for a preliminary injunction, the district court must balance four factors: (1) the movant’s showing of a substantial likelihood of success on the merits, (2) irreparable harm to the movant, (3) substantial harm to the nonmovant, and (4) public interest. CFGC v. England, 454 F.3d 290, 297 (D.C.Cir.2006). This Court “review[s] a district court’s weighing of the four preliminary injunction factors and its ultimate decision to issue or deny such relief for abuse of discretion.” Id. Legal conclusions — including whether the movant has established irreparable harm — are reviewed de novo. Id.
The four factors have typically been evaluated on a “sliding scale.” Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C.Cir.1999). 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[*1272] another factor. For example, if the movant makes a very strong showing of irreparable harm and there is no substantial harm to the non-movant, then a correspondingly lower standard can be applied for likelihood of success. See, e.g., WMATC v. Holiday Tours, 559 F.2d 841, 843 (D.C.Cir.1977). Alternatively, if substantial harm to the nonmovant is very high and the showing of irreparable harm to the movant very low, the movant must demonstrate a much greater likelihood of success. It is in this sense that all four factors “must be balanced against each other.” Davenport, 166 F.3d at 361. When seeking a preliminary injunction, the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction. CFGC, 454 F.3d at 297.
The pilots, misreading our precedent, insist they need “only establish that serious legal questions are at issue” in order to succeed on appeal. Appellants’ Br. at 6. They reach that conclusion by focusing on language in Holiday Tours, where this court noted a movant need not necessarily show a 51% likelihood of success on the first prong of the preliminary injunction analysis. 559 F.2d at 843. But Holiday Tours did not eliminate the other factors. The court simply acknowledged that a lessor likelihood of success might suffice if each of the other three factors “clearly favors” granting the injunction. Id. The pilots argue that, because the other three factors are “not contrary to” a preliminary injunction, they need only raise serious legal questions. Appellants’ Br. at 7. They are wrong.
The Supreme Court has recently addressed the standard for a preliminary injunction. See Winter v. NRDC, — U.S. -, 129 S.Ct. 365, 375, 172 L.Ed.2d 249 (2009) (holding that irreparable injury must be likely, “not just a possibility”). We note that the analysis in Winter could be read to create a more demanding burden, although the decision does not squarely discuss whether the four factors are to be balanced on a sliding scale. See id. at 392 (Ginsburg, J., dissenting) (“[Cjourts have evaluated claims for equitable relief on a ‘sliding scale,’ sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. This Court has never rejected that formulation, and I do not believe it does so today.”). We need not decide whether a stricter standard applies, because the pilots fail even under the “sliding scale” analysis of Davenport.
III. Discussion
Of the eleven substantive claims in the lawsuit, only three are proffered in support of a preliminary injunction. First, the pilots argue the PBGC incorrectly interprets an ERISA provision prioritizing benefits. The relevant language from ERISA limits Priority Category 3 — the prioritization level relevant here — to benefits “based on the provisions of the plan (as in effect during the 5-year period ending on [the plan’s termination] date) under which such benefit would be the least.” 29 U.S.C. § 1344(a)(3)(A). The PBGC has determined the plan has sufficient assets to cover all benefits in Priority Category 3, but the pilots believe the PBGC has improperly excluded the U.S. Airways Early Retirement Incentive Program from Priority Category 3.
The program authorizes incentives for early retirement. The question is whether the program was “in effect during the 5-year period ending on [the plan’s termination] date.” Id. (emphasis added). The phrase is not defined in § 1344(a)(3)(A). The parties do not dispute the relevant dates: The program was adopted by U.S. Airways on December 4, 1997. The program included a self-defined effective date of January 1, 1998. By the terms of the[*1273] program, no pilots could retire or collect payments under the program until May 1, 1998. The pension plan in this case was terminated on March 31, 2003, so the statutory five-year period began on March 31, 1998. If the early retirement plan was “in effect” before March 31,1998, then it satisfies the statutory requirement of being “in effect” for the full five-year period. If, however, the early retirement plan did not go into effect until after March 31, then it would not satisfy the statute’s five-year requirement and thus would not fall into Priority Category 3.
The PBGC says “in effect” means operationally effective — when pilots could elect to retire under the Early Retirement Incentive Program and when they could begin receiving payments under the program. Thus, according to the PBGC, the program was not “in effect” until May 1, 1998 — after the beginning of the five-year period on March 31, 1998. The pilots argue for a de novo, non-deferential interpretation, but we think Chevron-deference applies.
The pilots acknowledge the PBGC generally receives Chevron-deference for its authoritative interpretations of ambiguous provisions of ERISA. See PBGC v. LTV Corp., 496 U.S. 633, 651-52, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990); Mead Corp. v. Tilley, 490 U.S. 714, 722, 109 S.Ct. 2156, 104 L.Ed.2d 796 (1989). But deference should not apply, they say, when the PBGC is acting as trustee rather than guarantor, noting that no case or court has addressed the question of whether the PBGC receives Chevron-deference for decisions it makes as trustee. We see no reason to depart from the usual deference we give to an agency interpreting its organic statute. The pilots point out that a private party serving as trustee would not receive Chevron- deference, but this point proves nothing. Unlike a private trustee, the PBGC has unique experience and “practical agency expertise” in interpreting ERISA. LTV Corp., 496 U.S. at 651, 110 S.Ct. 2668. The PBGC is therefore “better equipped” to interpret ERISA than courts, id., and it is for this reason we defer to the PBGC’s authoritative and reasonable interpretations of ambiguous provisions of ERISA.
The PBGC’s interpretation of the relevant ERISA provision is embodied in its regulations limiting benefits in Priority Category 3 to “the lowest annuity benefit payable under the plan provisions at any time during the 5-year period.” 29 C.F.R. 4044.13(b)(3)(i) (emphasis added). Because this language refers to benefits that are “payable,” and because the early retirement program, by its own terms, did not allow the benefits to be payable until May 1, 1998, the PBGC determined that the program was not in effect for the full five-year period. Lacking any statutory definition or guidance, the meaning of the phrase “in effect” is ambiguous. See Chevron v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). And, because the Early Retirement Incentive Program only became operationally effective when it was first possible for pilots to retire under the program — or even collect payments under it — it is reasonable for the PBGC to use May 1, 1998 as the date the program came into effect.
The pilots’ second claim also relates to inclusion of benefits in Priority Category 3. The parties agree that for the entire five-year period prior to termination of the plan, the plan capped maximum benefits, tying the maximum cap to the level established in an IRS statute (26 U.S.C. § 415(b)). Congress amended the IRS statute approximately two years before termination, increasing the maximum cap in the statute. Because the plan tied itself to § 415(b), the maximum under the plan for the final two years was correspondingly raised.
[*1274] Although the PBGC agrees the maximum cap was in effect for the entire five years, it does not agree that the amended increase was in effect for all five years. Indeed, the PBGC is factually correct on this point, as even the pilots concede the amendment only occurred during the last two years of the relevant period. The PBGC therefore based its final determination on the lower cap. Though the pilots prefer the higher cap, the statutory text is plainly against them: Priority Category 3 is “based on the provisions of the plan (as in effect during the 5-year period ending on [the plan’s termination] date) under which such benefit would be the least” 29 U.S.C. § 1344(a)(3)(A) (emphasis added). The question here is not when the maximum-cap provision came into effect, but for which value “such benefit would be the least.” Because the benefit “would be the least” based on the figure applied during the first three years, the PBGC appropriately applied the lower value.
The pilots again argue against Chevron deference. Nothing about this second claim alters our earlier analysis. Since its action on the maximum cap is plainly consistent with the statutory language, the PBGC’s interpretation is sound. The pilots also claim Rettig v. PBGC, 744 F.2d 133 (D.C.Cir.1984), requires automatic increases based on congressional action. But Rettig is unhelpful. That case dealt with vesting standards for a pension plan terminated within the immediate aftermath of ERISA’s enactment. Id. at 135. This court held the PBGC was not permitted to phase-in vesting improvements which were made mandatory by statute without providing reasonable justification for the phase-in. Id. at 156. The case is not relevant here and it adopts none of the sweeping propositions the pilots cite.
The pilots’ third claim also involves a matter of statutory interpretation. ERISA states “the corporation shall guarantee, in accordance with this section, the payment of all nonforfeitable benefits.” 29 U.S.C. § 1322(a). In other words, the statute prescribes that the PBGC “shall guarantee” some defined “amount of monthly benefits,” up to a certain limit. The question is: what does it mean for the defined amount to be “guaranteed”?
The PBGC argues a “guarantee” is the amount a participant is “guaranteed” to receive, either from the plan assets or with help from the PBGC. For example, suppose the maximum amount of monthly benefits to be “guaranteed” is $4,000. If the pension plan is supposed to pay someone $9,000 per month, and if there are enough assets to pay $7,000 per month, then the PBGC has no obligation. The participant received the $4,000 that was “guaranteed” — and more — so the PBGC need not provide any additional payment. The pilots, on the other hand, believe the PBGC is still on the hook for the remaining $2,000 in the above scenario. The pilots see the guaranteed amount not as the amount a participant is guaranteed to receive, but as an amount the PBGC is obligated to pay.
The statutory text only says “the corporation shall guarantee” the specified amount. Id. It does not explain whether the specified amount is the amount the recipient is guaranteed to receive or whether it is the amount the PBGC is obligated to pay. We agree with the PBGC that the better interpretation is that a “guarantee” is the amount that a participant is “guaranteed” to receive.
For each of their three claims, the pilots have failed to demonstrate a substantial likelihood of success and thus make a very poor showing on the first prong. Their arguments on the second prong are similarly weak, as they cannot establish irreparable harm. The only alleged injuries in this case are economic.[*1275] The pilots complain that they are not getting enough money from the PBGC. If they succeed in their suit on the merits, the PBGC will have to give them the money they request. As this court has held, “in the absence of special circumstances, ... recoverable economic losses are not considered irreparable.” Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 (D.C.Cir.1995). The Supreme Court has echoed this message, finding that “the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.” Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974).
The only case the pilots cite to demonstrate irreparable harm is Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C.Cir.1984). In that case, this court affirmed the long-standing principle that an injunction will not be given for monetary relief prior to final judgment on the merits. Id. at 828-29. In fact, in Friends, the court held only that there was an exception to that general rule in cases where liability had already been established on the merits. Id. at 829. This case is distinguishable from the unique procedural setting in Friends, where liability had already been found and a preliminary injunction was sought prior to the complicated determination of monetary remedies. Additionally, although not explicitly stated in Friends, its analysis is consistent with the “sliding scale” on which preliminary injunctions are to be assessed. Davenport, 166 F.3d at 361. In Friends, liability had already been determined on the merits; the showing on prong one was not just a high likelihood of success, but a certainty of success. In such a case, where one factor has been shown to a certainty, it is appropriate to apply a lower threshold on other prongs, such as irreparable injury, in the balance of the four factors. See, e.g., CFGC, 454 F.3d at 297. In this case, however, the pilots do not make a good showing on the first prong, and we see no reason to depart from the general rule that economic harm does not constitute irreparable injury. The pilots argue their case is distinguishable from ordinary economic injury because many of their members are old and may not live to see final judgment. Their assertion that the possibility of death converts mere economic injury into irreparable harm is without citation or precedent, and we do not adopt it here.
Regarding the third and fourth prongs, the district court found minimal harm to the PBGC, noting that its injury was also purely economic, and found “[t]he public interest factor is a wash.” Davis, 596 F.Supp.2d at 5. Both parties devote very little argument to either of these prongs. We see no need to revisit the district court’s analysis. Given that the pilots have made very weak showings on prongs one and two, it is clear they cannot make the corresponding strong showings required to tip the balance in their favor.
IV. Conclusion
Because the pilots have failed to demonstrate either a substantial likelihood of success on the merits or irreparable harm, we affirm the district court’s denial of a preliminary injunction.
So ordered.
Concurrence
concurring:
I join the opinion of the Court. I write separately to add a few words about a point alluded to in the Court’s opinion: that this Circuit’s traditional sliding-scale approach to preliminary injunctions may be difficult to square with the Supreme Court’s recent decisions in Winter v. Natural Resources Defense Council, Inc., — U.S. -, 129 S.Ct. 365, 374-76, 172 L.Ed.2d 249 (2008), and Munaf v. Geren, [*1276] — U.S. -, 128 S.Ct. 2207, 2219, 171 L.Ed.2d 1 (2008).
In the Winter decision, the Supreme Court stated the requirements for a preliminary injunction definitively and clearly: “A plaintiff seeking a preliminary injunction must establish 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, 129 S.Ct. at 374. Importantly, the Winter Court rejected the idea that a strong likelihood of success could make up for showing only a possibility (rather than a likelihood) of irreparable harm. In other words, the Court ruled that the movant always must show a likelihood of irreparable harm. See id. at 375-76.
In last year’s decision in Munaf, the Court similarly stated: “We begin with the basics. A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right. Rather, a party seeking a preliminary injunction must demonstrate, among other things, a likelihood of success on the merits.” 128 S.Ct. at 2219 (internal quotation marks and citations omitted). Munaf made clear that a likelihood of success is an independent, free-standing requirement for a preliminary injunction. Munaf means that a strong showing of irreparable harm, for example, cannot make up for a failure to demonstrate a likelihood of success on the merits.
In the related context of stays, moreover, the Court has reiterated the same principles. See Nken v. Holder, — U.S. -, 129 S.Ct. 1749, 1762, 173 L.Ed.2d 550 (2009) (requiring that movant for a stay “satisffy]” first two factors of likelihood of success and irreparable harm). There, Justice Kennedy added: “When considering success on the merits and irreparable harm, courts cannot dispense with the required showing of one simply because there is a strong likelihood of the other.” Id. at 1763 (Kennedy, J., concurring).
In light of the Supreme Court’s recent decisions, I tend to agree with Judge Fernandez’s opinion for the Ninth Circuit that the old sliding-scale approach to preliminary injunctions — under which a very strong likelihood of success could make up for a failure to show a likelihood of irreparable harm, or vice versa — is “no longer controlling, or even viable.” Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009). It appears that a party moving for a preliminary injunction must meet four independent requirements. To be sure, the third preliminary injunction factor requires a balancing of the equities, but that’s an additional requirement, not a substitute for the first two requirements. In other words, under the Supreme Court’s precedents, a movant cannot obtain a preliminary injunction without showing both a likelihood of success and a likelihood of irreparable harm, among other things. With that observation, I join the opinion of the Court.