UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) Civil No. 12-1402 (RCL)

)

VOLVO CONSTRUCTION )

EQUIPMENT AB, )

)

Defendant. )

)

MEMORANDUM OPINION

The United States brought this action against defendant Volvo Construction Equipment 

AB (“VCE”) alleging violations of the Clean Air Act (“CAA”) and regulations promulgated 

thereunder. The case was assigned to the undersigned judge as a related case to United States v. 

Volvo Powertrain, 98-cv-2547. See Pl.’s Notice of Related Case, ECF No. 2. VCE objects to the 

United States’ filing this as a related case. Def.’s Mot. for Reassignment (“Def.’s Objection”), 

ECF No. 8. The Court agrees with VCE’s objections and will transfer the case to the Calendar 

Committee for random reassignment.1

I. BACKGROUND

Title II of the CAA, as amended 42 U.S.C. § 7521 et seq., and regulations promulgated 

thereunder set emissions standards for sources of air pollution including internal combustion 

engines not used in motor vehicles (“nonroad engines”). EPA has established emission standards 

for new nonroad engines, varying with model year, size, and type of engine. See 40 C.F.R. § 

 1 VCE also moved to dismiss for lack of personal jurisdiction and improper venue. Def.’s Mot. to Dismiss, ECF No. 

6. Because the Court transfers the case to the Calendar Committee for reassignment, it does not reach these issues.
2

89.112; see also 42 U.S.C. § 7547(a)(3)-(4). New nonroad engines cannot be sold or imported

unless covered by a certificate of conformity issued by EPA verifying that the engine satisfies

the appropriate emissions standard. § 7522(a)(1); 40 C.F.R. § 89.1003(a)(1)(i)-(ii). For each 

model year, a certificate covering the “engine family” must be obtained prior to sale or 

importation. § 89.105. Manufacturers are prohibited from selling any covered engine that does 

not bear a permanent emission control information label verifying that the engine conforms to 

these requirements. 42 U.S.C. §§ 7541(c)(3)(C) & 7522(a)(4)(A); 40 C.F.R. §§ 89.110 & 

89.1003(a)(4)(ii). 

II. THIS CASE IS NOT RELATED TO VOLVO POWERTRAIN UNDER LOCAL 

CIVIL RULE 40.5

The United States filed the present action on behalf of EPA pursuant to 42 U.S.C. § 

7524(a)-(b) and 40 C.F.R. § 89.1006(a)-(b) alleging numerous violations of the CAA’s 

certification and labeling requirements for nonroad engines. See Compl. ¶¶ 29-46, ECF No. 1. 

The case was assigned to the undersigned judge directly as related to United States v. Volvo 

Powertrain, 98-cv-2547. See Pl.’s Notice of Related Case, ECF No. 2. VCE objected, seeking 

to transfer the case to the Calendar Committee for reassignment. Def.’s Objection. 

“The general rule governing all new cases filed in this courthouse is that they are to be 

randomly assigned.” Tripp v. Exec. Office of President, 196 F.R.D. 201, 202 (D.D.C. 2000)

(three-judge calendar committee).2

 The “fundamental rationale” of random assignment is “to 

ensure greater public confidence in the integrity of the judicial process” by “guarantee[ing] fair 

 2 The Comment to LCvR 40.5(c)(3) explains:

The Court has eliminated the provision in this Rule that permitted a party to appeal to the Calendar 

and Case Management Committee an individual judge's decision with respect to whether cases are 

related because the Court does not believe it is appropriate for a party to be able to seek review of 

a decision of one judge of this Court by three of that judge’s co-equal colleagues. As amended, the 

Rule would make the individual judge’s decision final.

Cmt. LCvR 40.5(c)(3). 
3

and equal distribution of cases to all judges, avoid[ing] public perception or appearance of 

favoritism in assignments, and reduc[ing] opportunities for judge-shopping.” Id.

Local Civil Rule 40.5 stands as an exception to the general rule. It provides that, in the 

interests of judicial economy, “[w]here the existence of a related case in this court is noted at the 

time . . . the complaint is filed, the Clerk shall assign the new case to the judge to whom the 

oldest related case is assigned.” LCvR 40.5(c)(1). New cases are deemed “related” under rule 

40.5(a)(3) when (1) “the earliest is still pending on the merits in the District Court” and (2) they 

either (i) “relate to common property,” (ii) “involve common issues of fact,” or (iii) “grow out of 

the same event or transaction.” LCvR 40.5(a)(3). And, rule 40.5(a)(4) recognizes cases as 

“related” where “where a case is dismissed, with prejudice or without, and a second case is filed 

involving the same parties and relating to the same subject matter.” LCvR 40.5(a)(4). “The 

party requesting related-case designation and seeking to avoid random assignment bears the 

burden of showing that the cases are related under a provision of Local Civil Rule 40.5.” Autumn 

Journey Hospice, Inc. v. Sebelius, 753 F. Supp. 2d 135, 140 (D.D.C. 2010) (citing Judicial 

Watch, Inc. v. Rossotti, 2002 WL 31100839, at *1 (D.D.C.)).

As a “general rule,” a case settled by consent decree is no longer “pending on the 

merits.” Stewart v. O'Neill, 225 F. Supp. 2d 16, 19-20 (D.D.C. 2002). “To conclude otherwise 

would allow plaintiffs to file related cases for years afterwards so long as the court retained 

jurisdiction to consider attorneys’ fees applications, to remedy violations of the consent decree or 

to function in other prophylactic capacities.” Keepseagle v. Glickman, 194 F.R.D. 1, 2 (D.D.C. 

2000). In contrast, then-Chief Judge Robinson found that a case was still “pending on the 

merits” despite the existence of an approved consent decree where the parties might under the 
4

terms of that decree “need to litigate issues that must be considered ‘merits’ issues.” Collins v. 

Pension Ben. Guar. Corp., 126 F.R.D. 3, 7 (D.D.C. 1989). 

The present action is not “related” to Volvo Powertrain under rule 40.5(a)(3). Because 

Volvo Powertrain was settled by consent decree approved by Judge Kennedy in 1999, see United 

States v. Volvo Powertrain, 854 F. Supp. 2d 60, 63 (D.D.C. 2012), and because that decree does 

not authorize the parties to continue to litigate “merits” issues, that case is no longer “pending on 

the merits.” Compare Stewart, 225 F. Supp. 2d at 19-20, with Collins, 126 F.R.D. at 7. While 

the Court retains jurisdiction to resolve disputes regarding the implementation of the consent 

decree, see Volvo Powertrain, 854 F. Supp. 2d at 64; see also Pl.’s Objection 5, the availability 

of remedial proceedings does not qualify as an exception to the “general rule” that a such a case

is no longer “pending on the merits.” Stewart, 225 F. Supp. 2d at 19-20; see also Keepseagle, 

194 F.R.D. at 2 (concluding that a lawsuit was no longer “pending on the merits” where the 

Court retained jurisdiction “over these few matters typically reserved to courts after the approval 

of a settlement or entry of a consent decree”); Doe v. Von Eschenbach, 2007 WL 1655881 

(D.D.C. June 7, 2007) (concluding that a case in which the sole outstanding motion was a request 

for attorneys’ fees was not “pending on the merits”). The United States has failed to meet its 

burden. See Autumn Journey Hospice, 753 F. Supp. 2d at 140. 

Moreover, even if a remedial action under a consent decree could be considered “pending 

on the merits,” there is no such action currently pending in Volvo Powertrain that relates to 

“common property,” “common issues of fact,” or which “grow out[s] of the same event or 

transaction” as this case. LCvR 40.5(a)(3). The prospects that a controversy under the consent 

decree raising similar issues may reach this Court in Volvo Powertrain at some point in the 
5

future, see Pl.’s Response 2-3, is inadequate under the local rule.3 Howard v. Gutierrez, 405 F. 

Supp. 2d 13, 16 (D.D.C. 2005) (“The language of the Rule is in the present tense . . . [so] the 

Court reads the language of the Rule as restricting the designation of related cases to those that 

are related in the present, not in the possible future.”).

Finally, the present action is not “related” to Volvo Powertrain under rule 40.5(a)(4) 

because, while Volvo Powertrain is not “pending on the merits,” it was never dismissed. See Doe 

v. Von Eschenbach, 2007 WL 1655881 at *2. 

III. CONCLUSION

Because the Court finds that the present action is not a “related case” to Volvo 

Powertrain under LCvR 40.5, it transfers the action to the calendar committee for random 

reassignment.

An order shall issue with this opinion.

Signed by Royce C. Lamberth, Chief Judge, on February, 13, 2013.

 3 This Court’s order transferring the case to the calendar committee for reassignment is without prejudice to the 

parties’ ability to file a notice of a related case in the future, if appropriate, pursuant to LCvR 40.5 (b).