Opinion
2:23-CV-147-Z
2023-11-02
AIR PRODUCTS AND CHEMICALS, INC., and Air Products LLC, Plaintiffs, v. GENERAL SERVICES ADMINISTRATION, et al., Defendants.
Andrew Patrick LeGrand, Gibson Dunn & Crutcher LLP, Dallas, TX, Aaron Smith, Pro Hac Vice, Helgi C. Walker, Pro Hac Vice, David A. Schnitzer, Pro Hac Vice, Nathaniel J. Tisa, Pro Hac Vice, Gibson Dunn & Crutcher LLP, Washington, DC, M. Kendall Day, Pro Hac Vice, Washington, DC, for Plaintiffs. Liam Holland, DOJ-Civ, Federal Programs Branch, Washington, DC, for Defendants. Brian James Goodrich, Holland & Knight LLP, Dallas, TX.
Andrew Patrick LeGrand, Gibson Dunn & Crutcher LLP, Dallas, TX, Aaron Smith, Pro Hac Vice, Helgi C. Walker, Pro Hac Vice, David A. Schnitzer, Pro Hac Vice, Nathaniel J. Tisa, Pro Hac Vice, Gibson Dunn & Crutcher LLP, Washington, DC, M. Kendall Day, Pro Hac Vice, Washington, DC, for Plaintiffs.
Liam Holland, DOJ-Civ, Federal Programs Branch, Washington, DC, for Defendants.
Brian James Goodrich, Holland & Knight LLP, Dallas, TX.
ORDER
MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE.
Before the Court is Plaintiffs' Opposed Motion for Preliminary Injunction ("Plaintiffs' Motion") (ECF No. 6), filed on September 11, 2023, and Defendants' Motion to Dismiss ("Defendants' Motion") (ECF No. 21), filed on October 2, 2023. Having considered the Motions, briefing, and relevant law, the Court DENIES Plaintiffs' Motion and GRANTS Defendants' Motion.
By virtue of this Order, the Court also disposes of Plaintiffs' Motion for Leave to File Supplemental Material in Support of Motion for Preliminary Injunction (ECF No. 36), filed on October 31, 2023.
BACKGROUND
Plaintiffs are two companies, Air Products and Chemicals, Inc., and Air Products LLC. ECF No. 1 at 8. Together they purchase, refine, and deliver helium to public and private sector customers in the United States and across the globe. Id. at 3. Defendants are the General Services Administration ("GSA"), the Bureau of Land Management ("BLM"), and others. Id. at 2. This case concerns Defendants' forthcoming sale of the Federal Helium System ("System") to a private entity for which Defendants issued an Invitation for Bids ("IFB") soliciting offers on July 26, 2023. Id. at 6; ECF No. 7 at 15. Defendants
will close bids on January 25, 2024, and expect to sell and convey the System thereafter. ECF Nos. 1 at 6, 7 at 15, 37 at 1.
Plaintiffs describe the System, located outside Amarillo, Texas, as a "sprawling collection of equipment, land, and pipeline" that is "a vital and unique federal asset that serves America's energy, military, industrial, and medical needs." ECF No. 1 at 2. Yet Plaintiffs aver that Defendants are selling the System as if it were an inconsequential widget auctioned by GSA. Id.; ECF No. 7 at 14. Plaintiffs fear this methodology will interfere with Plaintiffs' ability to use helium purchased from the United States and stored in the System, result in a loss of customers and hard-earned goodwill, disrupt the country's vital supply of helium, and deprive Plaintiffs' customers of the refined helium used to deliver essential services to the public, thereby causing irreparable harm. ECF No. 1 at 10. Thus, Plaintiffs allege the IFB issued by Defendants to sell and convey the System is unlawful because (1) it violates the Helium Stewardship Act of 2013 ("Act") and (2) is "arbitrary and capricious" under the Administrative Procedure Act ("APA"). Id. at 6; ECF No. 6 at 2.
In response, Defendants move to dismiss Plaintiffs' action for lack of subject-matter jurisdiction and for failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. ECF No. 22 at 12. Defendants claim, inter alia, that Plaintiffs have failed to allege a certainly impending injury and therefore cannot demonstrate standing or ripeness. Id. at 2. And they aver that — in any event — Plaintiffs are unlikely to succeed on the merits because their theories are atextual and because the GSA and BLM considered each aspect of the problems Plaintiffs identify. Id. at 11.
LEGAL STANDARDS
"A preliminary injunction is an extraordinary remedy that should only issue if the movant shows: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest." Johnson v. Fed. Emergency Mgmt. Agency, 393 F. Appx. 160, 161 (5th Cir. 2010). A plaintiff's failure to demonstrate any one of these factors is sufficient to deny injunctive relief. Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989). Granting a preliminary injunction therefore represents "the exception rather than the rule." Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). And indeed, "[a] preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); see also Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009) ("Injunctive relief is 'an extraordinary and drastic remedy' and should only be granted when the movant has clearly carried the burden of persuasion.") (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)).
When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, courts should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam). In examining a Rule 12(b)(1) motion, courts are empowered to consider matters of fact, which may be disputed. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Likewise, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions...." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Moreover, "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Lastly, when courts are faced with a preliminary injunction and a motion to dismiss, the "preliminary injunction motion does not take priority over defendants' motion to dismiss for lack of jurisdiction." Pa. Mun. Auth. Ass'n v. Horinko, 292 F. Supp. 2d 95, 101 (D.D.C. 2003), aff'd sub nom. Pa. Mun. Auth. Ass'n v. Johnson, No. 04-5073, 2005 WL 2491482 (D.C. Cir. June 3, 2005). That is because "[j]urisdiction... is a threshold matter; without it, this court has no authority to decide other potentially dispositive issues in this case." Id.; see also Ticor Title Ins. Co. v. F.T.C., 814 F.2d 731, 757 (D.C. Cir. 1987) (Green, J., concurring) (holding that "lower courts must always wrestle with [jurisdictional issues] before reaching any questions of justiciability, since courts may not decide issues over which they lack jurisdiction"); Herron v. Veneman, 305 F. Supp. 2d 64, 71 (D.D.C. 2004). Thus, this Court must consider jurisdictional issues raised by Defendants before considering Plaintiffs' Motion for Preliminary Injunction.
ANALYSIS
A. Plaintiffs Have Not Shown Standing or Ripeness.
To bring a claim in federal court, a plaintiff must show that he suffered an "injury in fact" that is fairly traceable to the defendant and that is likely redressable by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To establish an "injury in fact," a plaintiff must show that he suffered "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Id. at 561, 112 S.Ct. 2130. The purpose of the imminence requirement is "to reduce the possibility of deciding a case in which no injury would have occurred at all." Id. at 564 n.2, 112 S.Ct. 2130.
According to Plaintiffs, the potential sale and conveyance of the System after January 2024 will (1) threaten their ability to take possession of their helium and to compete in the gas industry, (2) risk the loss of existing customers, (3) harm the reputation and goodwill required to secure future business, and (4) threaten to deprive their customers of the refined helium used to deliver essential services to the public. ECF No. 1 at 10. In other words, Plaintiffs claim that by virtue of the proposed disposal, they face an increased risk of a helium supply shortage that will — in turn — increase their risk of being unable to serve "customers and contracts." ECF No. 8 at 12. And they aver that this scenario increases their risk of economic injury. ECF No. 7 at 30.
However, "[t]his circuit does not recognize the concept of probabilistic standing based on a non-particularized increased risk — that is, an increased risk that equally affects the general public." E.T. v. Paxton, 41 F.4th 709, 715 (5th Cir.
2022) (internal marks omitted). "And even where increased-risk claims are particularized," as they are alleged to be here, "they generally cannot satisfy the actual or imminent requirement, which necessitates evidence of a certainly impending harm or substantial risk of harm." Id.; see also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014); Stringer v. Whitley, 942 F.3d 715, 721 (5th Cir. 2019); Ctr. for Biological Diversity v. EPA, 937 F.3d 533, 537 (5th Cir. 2019) ("[A]ny difference between 'certainly impending' and 'substantial risk' is immaterial here.").
This Order does not reject "probabilistic standing" wholesale. Rather, the Court merely recognizes that the facts pled here are insufficient to establish a "certainly impending harm" or a "substantial risk" of harm for the reasons infra.
As then-Judge Kavanaugh wrote for the D.C. Circuit, there is "a powerful argument that 'increased-risk-of-harm' claims... fail to meet the constitutional requirement that a plaintiff demonstrate harm that is 'actual or imminent, not conjectural or hypothetical.'" Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1294 (D.C. Cir. 2007) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). "Much government regulation slightly increases a citizen's risk of injury — or insufficiently decreases the risk compared to what some citizens might prefer." Id. at 1295. "Opening the courthouse to these kinds of increased-risk claims," however, "would drain the 'actual or imminent' requirement of meaning," "expand the 'proper — and properly limited' constitutional role of the Judicial Branch beyond deciding actual cases or controversies," and "entail the Judiciary exercising ... part of the Executive's responsibility to take care that the law be faithfully executed." Id. (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)).
Here, Plaintiffs' injuries — as pled — are too speculative to satisfy the foregoing tests. First, Plaintiffs allege injuries that may occur if the System must shut down. See ECF No. 7 at 9 ("If the System shuts down for even a few weeks, Air Products' stored helium will be inaccessible, and the broader helium shortage will be crippling."). However, it is unclear why the System is more likely to shut down under a private owner than under operation by the BLM — if it is likely to shut down at all. Indeed, under the Government's control, Plaintiffs note that they are "already facing crude helium shortages traceable to the System's unexpected shutdown." ECF No. 7 at 30 (emphasis in original). Moreover, helium supply shortages are difficult to manage under any owner. ECF No. 22 at 19. As Plaintiffs themselves acknowledge, "shortages are periodic and unavoidable occurrences because they are controlled by a multitude of uncontrollable factors[.]" ECF No. 8 at 304 (emphasis added); see also Tight Supplies, Cold May Boost Gas Market Volatility, IEA Says, BLOOMBERG (October 10, 2023), https://www.bloomberg.com/news/articles/2023-10-10/tight-supplies-cold-may-boost-gas-market-volatility-iea-says#xj4y7vzkg.
Second, although Plaintiffs maintain the System's eventual purchaser will likely decide to shut it down, there is little reason to think so — nor do Plaintiffs provide serious evidence to that effect. ECF No. 7 at 20, 22. Instead, they merely note Defendants "have refused to secure all the necessary rights-of-way for the System's pipeline, some of which may be subject to dispute upon conveyance," and that this will force a purchaser to "choose between risking legal violations, shutting down ..., or delaying operations...." ECF No. 1 at 42; see also ECF No 7. At 22. True, the System's pipeline traverses privately owned land using easements — and Plaintiffs make much of the fact that "some of these essential rights-ofway" lack legally adequate records." ECF No. 7 at 22 (emphasis added). However, theories of injury "that rest on speculation about the decisions of independent actors" are insufficient to demonstrate standing. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 414, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (holding, inter alia, that a "speculative chain of possibilities" does not establish that injury based on "potential future" events is "certainly impending" or "fairly traceable"). And indeed, Defendants aver "the notion that less than three of 423 miles of pipeline easements that were not recorded with the local county would generate the type of legal dispute[ ] over the pipeline's usage that would cause a court to imminently enjoin the new owner's operation... is baseless." ECF No. 22 at 11 (internal marks omitted).
The Court agrees. In the nearly sixty years that the System has been operated by the Government, Plaintiffs have identified no challenge or issue concerning those tracts of property brought by the respective landowners. ECF No. 23 at 499. Nor is there any basis for thinking a purchaser — public or private — would incur liability by breaching contractual obligations, assumed upon purchase, to assure delivery of helium stored in the System. See ECF No. 23 at 100.
Third, Plaintiffs have not shown that they face an imminent injury. Defendants' conveyance of the System may not occur as Plaintiffs anticipate — if it occurs at all. Moreover, there is virtually no basis for concluding that a "certainly impending" and "personal" injury would result even if a System shutdown did occur due to the IFB. True, Plaintiffs argue that such a shutdown would prohibit them from fulfilling customer contracts — but the record itself undercuts this claim. ECF No. 8 at 12.
Plaintiffs operate "the largest helium storage cavern in the world." ECF No. 23 at 426. That storage facility has "injection and withdrawal rates [that] exceed the current capacity of the BLM system allowing [Plaintiffs] to back up any planned or unplanned outages at any sources around the world." Id. As a result, Plaintiffs have presented evidence indicating that "[their] domestic competitors have been forced to ration helium and only partially fulfill existing contracts" but "[Plaintiffs] ha[ve] not yet been forced to do the same." ECF No. 8 at 10 (emphasis added).
Fourth, Plaintiffs lament that the IFB "does not include any rights to use the CHEU." ECF No. 7 at 18. The Crude Helium Enrichment United, or "CHEU," is "the enrichment unit that is necessary to produce helium at the System." Id.; see also ECF No. 7 at 10. And they fear that "[w]ithout the CHEU, no helium can be produced or extracted." Id. at 19. In response, Defendants aver it is likely that the purchaser of the System and the CHEU would reach an agreement to continue CHEU operation "because an agreement that ensures continued helium enrichment is in both parties' interest." ECF No. 22 at 20. But regardless of the particulars, there is no reason to expect — nor has any evidence been presented to even suggest — that a private purchaser of the System would want to incur liability by breaching contractual helium delivery obligations. ECF No. 23 at 101. Nor is this speculation sufficient to form the basis of a cognizable injury. See Stringer, 942 F.3d at 721.
Given this record, the Court is unconvinced Plaintiffs have adequately demonstrated standing. Plaintiffs have not shown that a possible shutdown of the System under a new owner would — or
even could — hinder them from fulfilling their regular business and contractual obligations due to the IFB. Nor have Plaintiffs explained or illustrated "the extent to which [any] risks" to its ability to deliver helium to its customers "would be increased" by the IFB. See Shrimpers & Fishermen of RGV v. Tex. Comm'n on Env't Quality, 968 F.3d 419, 425 (5th Cir. 2020). And "[w]ithout actual evidence" from Plaintiffs, this Court "will not wade into the morass of such empirical questions." Id. (internal marks omitted).
Like standing doctrine, ripeness reflects "Article III limitations on judicial power" and "prudential reasons for refusing to exercise jurisdiction." Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993); see also Abbott Lab'ys v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (explaining that the doctrine's "basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements"), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The ripeness inquiry hinges on two factors: (1) "the fitness of the issues for judicial decision," and (2) "the hardship to the parties of withholding court consideration." Roark & Hardee LP v. City of Austin, 522 F.3d 533, 545 (5th Cir. 2008) (quoting Monk v. Huston, 340 F.3d 279, 282 (5th Cir. 2003)). Generally, issues are fit for judicial decision "if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required." Id. However, some hardship is always required to establish ripeness. Id.; see also Cent. & Sw. Servs. v. E.P.A., 220 F.3d 683, 690 (5th Cir. 2000).
Here, Plaintiffs' identified issues are not fit for judicial resolution. First, Plaintiffs' claims that the sale and conveyance of the System will create a national helium supply crisis, see ECF No. 7 at 11, will only be substantively evaluable after further agency action and administrative processes. Indeed, if the IFB results in no qualified bidders for the System, Plaintiffs' claims will be moot. And if a qualified bidder is identified and a successful conveyance results, this Court would then be positioned to evaluate that bidder's plan for extraction, delivery, and operation of the System. But until then, this Court is confined to jurisdictionless speculation.
Second, further administrative process may render Plaintiffs' purported future injuries moot — even if no bidder adequately addresses Plaintiffs' "parade of (possible) horribles." Indeed, Defendants will not even make a final decision "about whether to convey ... until after completion of a statutory Antitrust Division review process, which could compel Defendants to terminate the sales contract." ECF No. 22 at 23. But in any event, Plaintiffs cannot demonstrate hardship from the future agency action of potentially awarding — as a final decision — the contract to a bidder.
Accordingly, at least at this phase of litigation, Plaintiffs' arguments are speculative. This Court finds no compelling showings of irreparable harm, and — to the extent there are any — such showings and arguments flow not from the challenged IFB itself, but from "delays and interruptions" Plaintiffs anticipate will follow the potential conveyance of the System to a private operator. ECF No. 7 at 28. The purported injury is therefore "contingent [upon] future events that may not occur as anticipated, or indeed may not occur at all." Thomas v. Union Carbide Agr. Prod. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). And "in the meantime[,] the plaintiffs suffer no concrete harm from the [IFB] itself, which does not require them 'to do anything or to
refrain from doing anything.'" Trump v. New York, 592 U.S. 125, 141 S. Ct. 530, 536, 208 L.Ed.2d 365 (2020) (quoting Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998)). Thus, Plaintiffs' claims are not yet ripe.
B. Plaintiffs Have Not Challenged a Final Agency Action.
It is well established that the general review provisions of the APA limit judicial review to "final agency action." See 5 U.S.C. Section 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."); Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ("When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the 'agency action' in question must be 'final agency action.'")
Final agency actions are actions which (1) "mark the consummation of the agency's decisionmaking process," and (2) "by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal marks omitted). The final action must be "an identifiable action or event." National Wildlife Fed'n, 497 U.S. at 899, 110 S.Ct. 3177. It may not be a "preliminary, procedural, or intermediate agency action or ruling[.]" 5 U.S.C. § 704. Absent a specific and final agency action, courts lack jurisdiction to consider a challenge to agency conduct. Am. Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir. 1999); see also Apter v. Dep't of Health & Hum. Servs., 80 F.4th 579, 593 (5th Cir. 2023).
Here, despite Plaintiffs' claims, the IFB does not "mark the consummation of the agency's decisionmaking process." Bennett, 520 U.S. at 178, 117 S.Ct. 1154. Rather, the IFB marks the inception — not the consummation — of the process. See 40 U.S.C. § 545. It closely resembles the type of "preliminary, procedural, or intermediate agency action or ruling not directly reviewable" that is instead "subject to review on the review of the final agency action." 5 U.S.C. § 704 (emphasis added). That is because the IFB merely indicates to the public that the GSA is ready to receive bids for review. ECF No. 8 at 26-27. So even if the IFB "mature[s] into a prejudicial result," the IFB itself cannot automatically be said to "mark the consummation" of the process. See Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 112, 68 S.Ct. 431, 92 L.Ed. 568 (1948); see also Bennett, 520 U.S. at 178, 117 S.Ct. 1154; Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011) (finding that "[t]ermination of asylum" is not the consummation of agency decisionmaking "because it automatically triggers another state of decision-making").
Nor can the IFB be said to determine "rights or obligations" or cause "legal consequences." Bennett, 520 U.S. at 178, 117 S.Ct. 1154. That is because — at least until there is an acceptance of a bid and/or a successful conveyance — there is no change in ownership, no change in operation of the System, and no binding contract with any bidder. ECF No. 8 at 30-36. Nor does a bidder assume any rights or obligations concerning the System. Id. Rather, Plaintiffs' pleadings identify "shutdowns" and "disruptions" that may occur as a result of a conveyance, and therefore fail to demonstrate that the IFB itself will have "any such legal or practical effect." See ECF No. 1 at 41; see also F.T.C. v. Standard Oil Co. of Cal., 449 U.S. 232, 242, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980). Indeed, Plaintiffs' alleged burdens are "different
in kind and legal effect from the burdens attending what heretofore has been considered to be final agency action." Standard Oil Co. of Cal., 449 U.S. at 242, 101 S.Ct. 488; see also Energy Transfer Partners, L.P. v. FERC, 567 F.3d 134, 141 (5th Cir. 2009). For the reasons — and those described supra — Plaintiffs' claims fail to challenge a final agency action.
C. Plaintiffs Have Not Shown They Are Substantially Likely to Prevail on the Merits.
Even if Plaintiffs had demonstrated both standing and ripeness and challenged a final agency action, they would still need to satisfy the conditions requisite for a preliminary injunction. Namely, Plaintiffs must show this Court "(1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest." Johnson v. Fed. Emergency Mgmt. Agency, 393 F. Appx. 160, 161 (5th Cir. 2010). Plaintiffs have failed to do so.
1. The IFB Does Not Violate The Helium Stewardship Act.
As discussed supra, Plaintiffs first allege the IFB issued by Defendants violates the Helium Stewardship Act. ECF Nos. 1 at 6, 7 at 16. Specifically, they claim that "[a] sale pursuant to the IFB will create instability in the helium markets and disrupt the supply of helium," thereby violating the Act's purported requirement "that any excess-property designation and sale and conveyance of the Federal Helium System must maintain stability in the helium markets and secure a continued supply of helium after sale and conveyance." ECF No. 1 at 41 (emphasis added). The first question, therefore, is whether the Act contains such a requirement at all.
"As this is a question of statutory interpretation, [this Court] begin[s] with the text of the statute." United States v. Lauderdale Cnty., Miss., 914 F.3d 960, 961 (5th Cir. 2019). And if the text is unambiguous, the analysis ends there as well. See BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004); see also Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). Here, the text provides — in relevant part — that:
Not earlier than 2 years after the date of commencement of Phase C described in subsection (c) and not later than September 30, 2021, the Secretary shall designate as excess property and dispose of all facilities, equipment, and other real and personal property, and all interests in the same, held by the United States in the Federal Helium System.
On its face, this text says nothing about "maintain[ing] stability in the helium markets" or "secur[ing] a continued supply of helium." See ECF Nos. 1 at 41, 7 at 18. Nor does it address what must occur after sale and conveyance. ECF No. 1 at 41-42. On the contrary, the statute only requires that "[t]he disposal of the property described in paragraph (1) shall be in accordance with Subtitle I of Title 40." 50 U.S. Code § 167d(d)(2). And Title 40 says nothing whatsoever about any purported obligation to maintain the stability of the helium market or to secure a continued supply of helium. See U.S. Code, Title 40, §§ 101-126, 501-624.
Having found no support in the core statutory text, Plaintiffs instead ground their arguments in (1) the Act's title, (2) the "design and structure of the statute as a whole," and (3) the "historical context of the [Act's] enactment." ECF No. 7 at 16, 17. But these arguments fall short. First, it is true that the Act's title, in full, is "An Act to amend the Helium Act to complete the privatization of the Federal helium reserve in a competitive market fashion that ensures stability in the helium markets while protecting the interests of American taxpayers, and for other purposes." Pub. L. No. 113-140 § 1, 127 Stat. 534 (emphasis added). The Act's "short title" is simply the "Helium Stewardship Act." Id. However, "headings and titles are not meant to take the place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide or a synopsis." Bhd. of R. R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 528, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). Rather, "[f]or interpretative purposes, [headings and titles] are of use only when they shed light on some ambiguous word or phrase." Id. at 529, 67 S.Ct. 1387; see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 218 (2012). "They are but tools available for the resolution of a doubt. But they cannot undo or limit that which the text makes plain." Bhd. of R. R. Trainmen, 331 U.S. at 529, 67 S.Ct. 1387 (emphasis added). Here, the "text makes plain" that there is no such requirement to "maintain stability" in the helium markets and secure a continued supply of helium after sale and conveyance.
Here, Plaintiffs incorrectly refer to language included in the Act's title as instead being found in the Act's preamble. See ECF No. 7 at 16 ("The starting point for construing the Act's standard for disposing of property is the Act's preamble....") (emphasis added). But regardless, preambles do not "limit or expand the scope of the operative" text. District of Columbia v. Heller, 554 U.S. 570, 578, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Rather, "the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms." Id. at 578 n.3, 128 S.Ct. 2783; see also All. for Hippocratic Med. v. U.S. Food & Drug Admin., 78 F.4th 210, 264 (5th Cir. 2023) (Ho, J., concurring) ("[W]e do not use preambles to expand the meaning of clear regulatory text."); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 218 (2012) ("[T]he prologue cannot give words and phrases of the dispositive text a meaning that they cannot bear."). Thus, whether in the title or preamble, these words cannot override unambiguous text.
Plaintiffs next aver that the "design and structure of the statute as a whole" and the "historical context of the [Act's] enactment" necessitate their proffered reading. However, when "the statutory text is plain and unambiguous," this Court "must apply the statute according to its terms." Carcieri v. Salazar, 555 U.S. 379, 387, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009); see also Dodd v. United States, 545 U.S. 353, 359, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005); United States v. Kaluza, 780 F.3d 647, 658 (5th Cir. 2015); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917); United States v. Gonzales, 520 U.S. 1, 4, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997). Here, the "plain and unambiguous text" makes clear that there is no requirement to "maintain stability" in the helium markets and secure a continued
Simultaneously, the concepts of "purposivism" and "compositionality" should not be conflated. While "purposivism" emphasizes non-textual considerations, "compositionality" merely stands for the idea that "a phrase is often more (or less) than the sum of its parts. Or, as the linguists would put it, compositionality is the notion that the meaning of a complex expression is a compositional function of the meanings of its [semantic] parts." James C. Phillips, The Overlooked Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality (May 11, 2020) (unpublished manuscript), (internal marks omitted).
supply of helium after sale and conveyance.
Plaintiffs next claim that "[a] sale pursuant to the IFB will create instability in the helium markets and disrupt the supply of helium." ECF No. 1 at 41. Specifically, they claim that this instability and disruption will result because the IFB "does not: (1) include the CHEU, which is necessary to operate the System; (2) address the many compliance issues, including safety concerns, that the Government itself has been unable to meet; or (3) document all necessary pipeline rights-of-way." ECF No. 7 at 18. These assertions are unpersuasive.
First, the CHEU. Plaintiffs argue that the IFB's exclusion of any rights to use the CHEU violates the Act in two ways: "[f]irst, under the Act's plain text, the CHEU is part of the System and thus any interests in the CHEU must be conveyed with the rest of the System," and "[s]econd, the [IFB's] omission of any CHEU lease right ... violates the Act because its omission guarantees a supply interruption." ECF No. 7 at 18-19. This latter argument has been rendered moot by the foregoing statutory analysis, and the former falls short on the merits.
Per the Act's text, Defendants are only required to "dispose of all ... interests in" "facilities, equipment, and other real and personal property ... held by the United States in the [FHS]." 50 U.S.C. § 167d(d)(1). That disposal "shall be in accordance with Subtitle I of Title 40." 50 U.S.C. § 167d(d)(2). Subtitle I, in turn, authorizes the Government to take any "action it considers necessary and proper" to dispose of its interests — which categorically includes its interest in the CHEU and the CRLP contract that governs it. 40 U.S.C. § 543.
As Defendants have made clear, they anticipate disposing of that interest "by either allowing it to expire, descoping the requirement, or exercising [their] right to unilateral termination at the convenience of the Government." ECF No. 22 at 29. They argue that BLM "anticipates one of these methods to be necessary and proper for disposal of its interest in the contract because BLM determined that those interests cannot be transferred to a non-federal entity," and "that doing so would expose it to litigation risk[s]." Id. (internal marks omitted). And Defendants maintain BLM "determined that assigning the CHEU contract to the purchaser would be unreasonable because it includes many concepts that would not apply to private entities." Id. at 30. Nevertheless, Plaintiffs aver that "any interests in the CHEU must be conveyed with the rest of the System." ECF No. 7 at 11 (emphasis added). But that is not what the statute says.
The Act speaks only of the Defendants' need to "dispose of" their interests in the System. Nothing in the Act requires that this disposal be executed by way of conveyance — and had Congress intended for the Act to have that effect, "it knew how to say so." Rubin v. Islamic Republic of Iran, 583 U.S. 202, 138 S. Ct. 816, 826, ___ L.Ed.2d ___ (2018); see also Conn. Nat. Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ("[A] legislature says in a statute what it means and means in a statute what it says there."); Wallaesa v. Fed. Aviation Admin., 824 F.3d 1071, 1083 (D.C. Cir. 2016) ("If Congress had intended that narrow meaning, it knew how to say so."). Thus, Plaintiffs' argument falls short.
Second, Plaintiffs claim that instability and disruption will result because the IFB does not "address the many compliance issues, including safety concerns, that the Government itself has been unable to meet," or "document all necessary pipeline rights-of-way." ECF No. 7 at 18. Specifically, Plaintiffs argue that "Defendants, as
federal government actors, have been largely exempt from these requirements — but a private purchaser would be obligated to comply with them all" and that "Defendants' failure to address that reality will threaten to disrupt the continued helium supply...." ECF No. 7 at 20. And they aver that the IFB's failure to "secure pipeline rights-of-way" will further "disrupt the helium markets, contrary to the Act." Id. at 22.
However, as previously evaluated in this Court's standing, ripeness, and final agency action analyses, these claims are overstated. First, Plaintiffs make much of the difference between Government operation and private operation of the System. But as discussed, under the Government's control, Plaintiffs are "already facing crude helium shortages traceable to the System's unexpected shutdown." ECF No. 7 at 30 (emphasis in original). And helium supply shortages are difficult to manage under any owner. ECF No. 22 at 19. Moreover, Plaintiffs themselves acknowledge that "shortages are periodic and unavoidable occurrences because they are controlled by a multitude of uncontrollable factors[.]" ECF No. 8 at 304 (emphasis added).
Second, as to the pipeline rights-of-way, it has already been acknowledged that merely some "may be subject to dispute upon conveyance of the System." ECF No. 1 at 42. Speculation notwithstanding, Plaintiffs have failed to identify — in the nearly sixty years that the System has been operated by the Government — a single challenge or issue concerning those tracts of property brought by the respective landowners. ECF No. 23 at 499.
Further, Plaintiffs seemingly disregard Defendants' requirement in the IFB "that the purchaser identify an operation partner that has experience operating gas plants." ECF No. 22 at 20 (internal marks omitted). Nor do they evaluate the likelihood that prudent purchasers are currently undertaking the necessary due diligence to confront these possible issues prior to making an offer. But in any event, as discussed supra, the Act contains no requirement to "maintain stability" in the helium markets and secure a continued supply of helium after sale and conveyance — so even if Plaintiffs' claims were true, they would not constitute violations of the Act.
2. The IFB is Not "Arbitrary and Capricious."
Even if Plaintiffs had succeeded on all the foregoing claims, they would still fall short on their APA challenge. Indeed, "[j]udicial review under that standard is deferential," and merely requires "that agency action be reasonable and reasonably explained." Fed. Commc'ns Comm'n v. Prometheus Radio Project, 592 U.S. 414, 141 S. Ct. 1150, 1158, 209 L.Ed.2d 287 (2021). "[A] court may not substitute its own policy judgment for that of the agency." Id. Rather, "[a] court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision." Id.; see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513-14, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009); Motor Vehicle Mfrs. Ass'n. of U.S., Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); FCC v. WNCN Listeners Guild, 450 U.S. 582, 596, 101 S.Ct. 1266, 67 L.Ed.2d 521 (1981). And lastly, it is Plaintiffs who bear "the burden of proving that the agency's determination was arbitrary and capricious." Medina Cnty. Env't Action Ass'n v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010); see also United States ex rel. Jamison v. Career Opportunities, Inc., No. 3:16-CV-3248-S,
2021 WL 4734500, at *1 (N.D. Tex. Feb. 2, 2021).
Here, Plaintiffs allege that the IFB is "arbitrary and capricious" because Defendants (1) unreasonably ignored risks to the national helium supply, (2) failed to account for reliance interests in the sale occurring after the delivery of purchased helium, and (3) failed to account for reasonable alternative means of selling the System while protecting the national helium supply. ECF No. 7 at 23, 26, 27. Concerning the first claim, Plaintiffs argue that "Defendants' planned sale will disrupt the helium market," and that Defendants "structured [their] decision-making in such a way that [they] entirely failed their basic duty to match the disposal process with the nature of the property at issue and the interests at stake." ECF No. 7 at 23. In other words, "[t]he System is a special federal asset, and its sale requires specifical safeguards; it is not reasonable to auction the System as if it were just another widget." Id.
Plaintiffs further claim that "the [IFB] irrationally decreases the System's ability to maintain functionality and, in turn, increases the likelihood that Air Products (and others) have no way to access their crude helium in the reservoir." Id. at 24 (internal marks omitted). And they aver that, in any event, "there is no need to sell and convey the System at this time." Id. at 25.
Defendants respond that they thoroughly considered "whether proceeding toward sale and conveyance of [the System] would disrupt the helium market." ECF No. 22 at 33. They argue they "deliberately structured the IFB to minimize the likelihood of any market disruption," id., "consider[ed] the interrelationship between the continued operation of the CHEU and the [System], contrary to Plaintiffs' suggestion," id. at 34, "considered requests for more guidance on regulatory requirements," and explained that "the requirement of a successful bidder with experience operating gas plants provides reasonable assurance that the purchaser be able to navigate applicable safety, pipeline, and environmental regulations," id. at 35. And Defendants aver that they "reasonably decided to proceed towards the sale after clos[ing] the gaps in [the] title information for the pipeline easements[,] ... verifying 100% of those documents." Id.
Here, the Court finds that Defendants did not unreasonably ignore risks to the national helium supply. Indeed, Defendants "required the purchaser to assume the obligations for management and delivery of privately owned helium stored in the reserve in accordance with the helium owners' Contracts for the Storage and Delivery of Helium," and "required purchasers to identify an operation partner who must be capable of fully operating the Property to the extent required to meet its acquired obligations under those contracts." Id. at 33 (internal marks omitted). Concerning the CHEU, Defendants "met with the CRLP — the owners of the CHEU," "to see if they would be willing to agree to leave the CHEU to a purchaser," and ultimately decided that "it was unlikely that leaving the purchaser and CRLP flexibility to address the helium enrichment issue would put helium market stability at any risk." Id. at 34. And as for the "six easement parcels that were not recorded with their respective county clerks' offices" that Plaintiffs identified, Defendants reasonably determined "this negligeable issue did not outweigh the interest in avoiding further delay, which is more consistent with the statutory language." Id. at 35-36.
Lastly, Plaintiffs' argument that there is no need to sell and convey the System at this time stretches the statutory text, which unambiguously states that "not later
than September 30, 2021, the Secretary shall designate as excess property and dispose of all facilities, equipment, and other... interests ... held by the United States in the Federal Helium System." 50 U.S. Code § 167d(d)(1) (emphasis added). But even if Plaintiffs are correct that the Act grants Defendants some flexibility as to when they sell and convey the System, it does not follow that the September 2021 deadline becomes irrelevant after the Government designates excess. Nor does it follow that Defendants acted arbitrarily in reasonably determining that "issuing the IFB in July 2023 furthered their interest in adhering to their statutory mandate, and that this interest outweighed other interests that may have been addressed even further with yet more delay." ECF No. 22 at 32.
Plaintiffs' second claim is that Defendants failed to account for reliance interests in the sale occurring after delivery of purchased helium. ECF No. 7 at 26. They argue that Defendants "repeatedly represented that they would not sell and convey the System before all privately owned helium is produced from the [Cliffside Field]... in recognition of the United States' contractual obligations to deliver helium that has been sold." Id. (internal marks omitted). And Plaintiffs aver that Defendants "did not even acknowledge that they were walking back previously announced plans, much less explain why." Id. at 27.
Defendants respond that they did indeed consider the interests of entities that own helium stored in the System, and that, in any event, Plaintiffs' argument fails at the outset because the Government "never maintained a policy that it would await disposal of the [System] until all privately owned helium is produced from the Cliffside Field." ECF No. 22 at 36. Defendants argue that, to establish the prior purported policy, "Plaintiffs rely only on a 2020 press release" that "merely described BLM's anticipated timeline for declaring the FHS as excess (before September 30, 2021), which would be followed by GSA's statutory disposal process, which BLM anticipated would be complete by about 2023." Id. (internal citations and marks omitted). And they aver that, "[a]lthough at the time, BLM anticipated that the schedule would allow for all privately owned helium [to be] produced from the field, BLM's press release in no way represented that GSA — which was responsible for the disposal — or anyone else would await disposal of the FHS until after... all privately owned helium was withdrawn if withdrawal did not occur as anticipated." Id. (internal citations and marks omitted).
In light of this evidence, this Court finds that Plaintiffs' second claim fails. Indeed, as Defendants note, the idea that the Government had maintained such a policy is undercut by, inter alia, "the contracts for storage and delivery of Helium that [Plaintiffs] signed." Id. "Those contracts — which ensure that the purchaser would assume delivery obligations — put [Plaintiffs] and other parties on clear notice that Defendants contemplated selling the FHS before all privately owned helium was delivered." Id. at 36-37. The Court agrees, and therefore finds that Plaintiffs' second claim under the APA falls short.
Lastly, Plaintiffs allege that the IFB is "arbitrary and capricious" because Defendants failed to account for reasonable alternative means of selling the System while protecting the national helium supply. ECF No. 7 at 27. Specifically, Plaintiffs claim that Defendants "failed to consider two perfectly reasonable alternatives, each of which would have privatized the System without destabilizing the helium market." Id. Those alternatives are "selling and conveying the System at a later
date" and, otherwise, "leaving the sale and conveyance dates in place while pursuing less-restrictive alternatives to vindicate [their] concerns." Id. at 28 (internal marks omitted). "For example," Plaintiffs suggest, "Defendants could have guaranteed compensation in the event a buyer fails to deliver helium." Id.
Plaintiffs' first argument — that Defendants should have considered "selling and conveying the System at a later date" — has already been dealt with by this Court: Defendants did consider this possibility. See ECF No. 22 at 32. And their decision to move forward with the IFB is supported by the text of the Act and reasonable given the circumstances. Indeed, "Defendants reasonably determined that ... issuing the IFB in July 2023 furthered their interest in adhering to their statutory mandate, and that this interest outweighed other interests that may have been addressed even further with yet more delay." Id.
Plaintiffs' second argument — that "Defendants could have guaranteed compensation in the event a buyer fails to deliver helium" — is also unpersuasive. ECF No. 7 at 28. Defendants respond that they did consider this request, and that, in any event, "Plaintiffs identify no statutory authority under which GSA or BLM could consider any such indemnification." ECF No. 22 at 37. Defendants are correct on both scores. See ECF No. 23 at 16, 517; see also ECF Nos. 7, 8. Moreover, the Anti-Deficiency Act, 31 U.S.C. Section 1341(a)(1), prohibits expenditures in excess of appropriations — on pain of criminal penalties — thereby "bar[ring] a federal employee or agency from entering into a contract for future payment of money in advance of, or in excess of, an existing appropriation." Hercules, Inc. v. United States, 516 U.S. 417, 427, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996).
"Except as specified in this subchapter or any other provision of law, an officer or employee of the United States Government or of the District of Columbia government may not... make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation...." 31 U.S.C. § 1341(a)(1).
Accordingly, because Plaintiffs' proposed indemnification is precluded by the Anti-Deficiency Act, they have failed to show — at the least — prejudicial error. See Ass'n of Am. Physicians & Surgeons v. Sebelius, 746 F.3d 468, 472 (D.C. Cir. 2014) (error is harmless when "all the procedure in the world could not lawfully lead" agency to the desired conclusion). Much less is the Court convinced that Defendants acted improperly by allegedly failing to consider alternatives in a non-arbitrary manner. Hence, Plaintiffs' challenges under the APA fail.
D. Plaintiffs Are Not Likely to Suffer Irreparable Injury.
Plaintiffs next claim that they will suffer irreparable harm because (1) their ability to use their "valuable asset will be harmed," (2) they will irreparably lose "customer goodwill," and (3) they "cannot seek damages relief from Defendants." ECF No. 7 at 28, 30-31. Given the facts at hand, each of these assertions is insufficient to establish irreparable injury for the purposes of a preliminary injunction.
The "frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction." Winter, 555 U.S. at 22, 129 S.Ct. 365 (2008) (emphasis in original); Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974); O'Shea v. Littleton, 414 U.S. 488, 502, 94
S.Ct. 669, 38 L.Ed.2d 674 (1974). "[A] preliminary injunction will not be issued simply to prevent the possibility of some remote future injury." Winter, 555 U.S. at 22, 129 S.Ct. 365. Moreover, "[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court's] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id.
Concerning claim one, Plaintiffs argue they "will suffer irreparable harm to [their] property and contract rights in bought-and-paid-for helium if Defendants' proposed sale is allowed to proceed" because "[t]he System's technical limitations prevent [them] from receiving all of [their] purchased helium — the current value of which far exceeds the hundreds of millions of dollars that Air Products paid for it — before Defendants' accelerated sale date." ECF No. 7 at 28. And they aver that "timely access" to the "nearly four billion cubic feet of helium stored at and delivered through the System" is "an irreplaceable business opportunity." Id. at 29.
Defendants respond that Plaintiffs fail to substantiate their purported inability to receive their "bought-and-paid-for helium" and that, even if they did, Plaintiffs never substantiate how they would "be irreparably harmed by that inability." ECF No. 22 at 26. According to Defendants, "[i]nsofar as [Plaintiffs assert] economic harm from being unable to supply [their] customers with helium ... that injury is speculative, and not sufficient to make a clear showing of irreparable harm." Id. (internal citations and marks omitted).
The Court agrees. First, as explained previously, the notion of a "helium shutdown" is itself speculative. But even assuming such a shutdown is guaranteed to occur, Plaintiffs fail to show why an injunction would be the appropriate remedy for quintessentially financial risks. On the contrary, "a preliminary injunction is an inappropriate remedy where the potential harm to the movant is strictly financial." Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 875 F.2d 1174, 1179 (5th Cir. 1989). True, an exception to that rule exists "where the potential economic loss is so great as to threaten the existence of the movant's business." Id. (emphasis added). But here, Plaintiffs warn not that their business's destruction is imminent, but instead that they risk losing "an irreplaceable business opportunity." ECF No. 7 at 29. The exception does not apply.
Plaintiffs' second claim — that they will irreparably lose customer goodwill due to Defendants' actions — fails as well. Plaintiffs argue that, in essence, their "ability to fulfill existing and repeat orders" will be frustrated, thereby damaging their "hard-won goodwill among those customers who stay in the market." ECF No. 7 at 31. But as discussed supra, that anticipated inability hinges on speculation too tentative to support Plaintiffs' claims. And even if such an inability did temporarily occur, Plaintiffs have not shown that an irreparable injury would also occur. Rather, Plaintiffs possess a storage system that insures against shortage-related risks, and there is little reason to think that "customer goodwill" would be threatened unless Plaintiffs' competitors would be better situated in the event of a shutdown. ECF Nos. 8 at 10, 23 at 426. If anything, the evidence suggests the contrary: Plaintiffs have indicated that "[their] domestic competitors have been forced to ration helium and only partially fulfill existing contracts" but "[Plaintiffs] ha[ve] not yet been forced to do the same." ECF No. 8 at 10 (emphasis added).
Lastly, Plaintiffs argue they are likely to suffer irreparable injury because
they "cannot seek damages relief from Defendants." ECF No. 7 at 31. Because "[s]overeign immunity bars [Plaintiffs] from seeking money damages against the federal government," they aver that "preliminary injunctive relief is the only option." Id. Defendants respond that even if a brief shutdown causes Plaintiffs to lose profits or revenue, they fail to explain why their economic injuries "could not 'be made whole by money damages or other subsequent relief' against the [System] purchaser, which, under the IFB, must assume the Government's obligations to deliver helium to owners." ECF No. 22 at 26 (quoting White v. Carlucci, 862 F.2d 1209, 1213 (5th Cir. 1989)). And they aver that, although Plaintiffs emphasize they cannot seek damages from Defendants, "an injury is still reparable as long as recovery from a third party remains possible." Id. at 26; see also Wis. Gas Co. v. FERC, 758 F.2d 669, 675 (D.C. Cir. 1985) (finding "several possible means by which [pipelines] could recover" alleged losses).
The Court agrees with Defendants. Further, as the briefing indicates, Plaintiffs are subject to a helium storage contract with the Government in which the parties contemplate the assignment of delivery obligations for the helium after the System's conveyance to the purchaser. ECF Nos. 22 at 26, 8 at 234. And that contract contains provisions that directly bear on the claims at issue. One relevant provision reads:
Any disputes that arise after the Government Assignment and Conveyance will be disposed of strictly between Real Property Purchaser and Person whether by mutual written agreement or by seeking legal redress in the appropriate federal or state judicial forum. Person understands, acknowledges, and agrees that the United States shall no longer be a responsible party to either Real Property Purchaser or Person after Government Assignment and Conveyance and shall not be made a party any dispute or judicial proceeding pursuant to this Section 13.2.
ECF No. 8 at 234.
Here, Plaintiffs clearly agreed to legal — not equitable — redress. Id. (Plaintiffs agreed to "seek[ ] legal redress in the appropriate federal or state judicial forum.") (emphasis added). By agreeing to legal redress, Plaintiffs "virtually waived" injunctive relief. See Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24 (5th Cir. 1992) ("[W]hen parties ... who have drafted their own agreement, expressly advert to the possibility of a breach and specify the remedy as ... damages — with no mention of injunction — injunctive relief is virtually waived."). Indeed, "[b]y definition, irreparable injury is that for which compensatory damages are unsuitable, yet compensatory damages is precisely the remedy prescribed by Plaintiffs in the contract drafted by their counsel." Id. (internal marks omitted). The same is true here. Plaintiffs' arguments fall short.
E. An Injunction Would Not Serve the Public Interest.
Lastly, Plaintiffs argue that the balance of equities and public interest strongly favor preliminary relief. ECF No. 7 at 31. They claim that "[t]he public interest calls for vindicating the Helium Stewardship Act's specific goal of ensur[ing] stability in the helium markets — a public interest specifically prioritized by Congress," and that "[t]he proposed sale and conveyance... will result in a System that cannot function," causing massive harm to "small businesses," "the Government," and "national defense." Id. at 31-32 (internal marks omitted). And Plaintiffs aver that, in any case, "Defendants have no interest to balance against market stability." Id. at 32.
Defendants respond they have "a compelling interest in preserving the confidence of the bidding process, which is essential
for maximizing bidder participation...," and that an injunction "would chill investor and bidder confidence." ECF No. 22 at 37. And they argue that the bidders' interests also merit consideration. See id. at 38 ("GSA anticipates that prudent bidders — many of which may be direct competitors with AP — may be spending considerable resources preparing their bid packages. If the auction is enjoined, those resources may be unrecoverable.")
Finally, Defendants argue an injunction would cause the Government irreparable harm. Id. "During this temporary period before sale and conveyance of the [System], BLM executed several contracts to continue [System] operation." Id. Hence, "[g]ranting the extraordinary relief Plaintiffs seek would result in the Government incurring unanticipated [and] unrecoverable operational costs of $2.2 million per year, which are not covered by fees." Id.
The Court agrees with Defendants. The balance of harms and public interest considerations "merge when the Government is the opposing party," as is the case here. Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). In considering this balance, "courts must be mindful that the Government's role as the respondent ... does not make the public interest in each individual one negligible." Id. On the contrary, when the sale and conveyance of something is at issue, there is a "strong public interest in avoiding disruptions in procurement, and for withholding judicial interjection unless it clearly appears that the case calls for an assertion of an overriding public interest 'in having the agencies follow the regulations which control government contracting.'" Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1270-71 (5th Cir. 1978) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1300 (D.C. Cir. 1971)). Nothing in this case overrides that "strong public interest."
Further, Plaintiffs' bare appeals to "national defense" are inadequate. To be clear, arguments that national defense and/or security will be threatened by a particular act or event are of the utmost seriousness. See Egbert v. Boule, 596 U.S. 482, 494, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022); Trump v. Hawaii, 585 U.S. 667, 138 S. Ct. 2392, 2409, 201 L.Ed.2d 775 (2018); Dep't of Navy v. Egan, 484 U.S. 518, 520, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988); United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 L.Ed. 727 (1953). But here, Plaintiffs make no such arguments. They merely warn — without meaningful elaboration or factual support — that some "national defense activities" may be undermined if the helium supply is disrupted. And they describe neither what these activities are nor how they make use of helium. ECF No. 7 at 29, 32. Such claims are insufficient.
Lastly, Plaintiffs' requested relief would interfere with the Act's mandate that "not later than September 30, 2021, [BLM must] designate as excess property and dispose of [the System]." Even adopting Plaintiffs' proffered reading of the Act, its language assuredly does not contemplate delaying the sale "until the end of 2026, if not longer," as Plaintiffs intend. ECF No. 7 at 2. And given that "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck" against a delay, abiding by Congress's decision serves the public interest. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).
CONCLUSION
Plaintiffs have not shown standing, nor have they pled ripe claims directed toward a final agency action. Even if they had, Plaintiffs nevertheless fail to make the requisite showing for a preliminary injunction. This Court finds that Defendants'
actions are neither contrary to the Helium Stewardship Act nor "arbitrary and capricious" under the Administrative Procedure Act. Accordingly, Plaintiffs' Motion is DENIED and Defendants' Motion is GRANTED.
SO ORDERED.