United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2009 Decided July 10, 2009

No. 08-5524

THOMAS G. DAVIS, ET AL.,

APPELLANTS

v.

PENSION BENEFIT GUARANTY CORPORATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01064-JR)

Anthony F. Shelley argued the cause for appellants. With

him on the brief for stay or injunction pending appeal and for

expedited consideration and the reply was Timothy P. O'Toole.

James J. Armbruster, Assistant Chief Counsel, Pension

Benefit Guaranty Corporation, argued the cause for appellee.

With him on the opposition and brief to dispose of the appeal in

its entirety were Judith R. Starr, General Counsel, Israel

Goldowitz, Chief Counsel, Paula J. Connelly and Garth D.

Wilson, Assistant Chief Counsel, and Jean Marie Breen,

Attorney.

Before: HENDERSON, BROWN, and KAVANAUGH, Circuit

Judges.
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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
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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; 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
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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 Decl. 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 lumpsum 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
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(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 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, 129 S. Ct. 365,

375 (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
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does not squarely discuss whether the four factors are to be

balanced on a sliding scale. See id. at 392 (Ginsburg, J.,

dissenting) (“[C]ourts 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 program, no pilots could retire or collect payments

under the program until May 1, 1998. The pension plan in this
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case was terminated on March 31, 2003, so the statutory fiveyear 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 (1990); Mead Corp. v. Tilley, 490 U.S. 714,

722 (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. 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
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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 (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 fiveyear 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.

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
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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”?
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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. 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,
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ultimately to be recovered, does not usually constitute

irreparable injury.” Sampson v. Murray, 415 U.S. 61, 90 (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
12

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.
KAVANAUGH, Circuit Judge, with whom Circuit Judge

HENDERSON joins, 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 slidingscale approach to preliminary injunctions may be difficult to 

square with the Supreme Court’s recent decisions in Winter v. 

Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374-

76 (2008), and Munaf v. Geren, 128 S. Ct. 2207, 2219 (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, 129 S. Ct. 

1749, 1762 (2009) (requiring that movant for a stay 
2 

“satisf[y]” 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.