ELK ASSOCIATES FUNDING CORPORATION, Plaintiff, v. UNITED STATES SMALL BUSINESS ADMINISTRATION, and Karen G. Mills, Administrator of the United States Small Business Administration, Defendants.
Civil Action No. 12-00438 (CKK).
United States District Court, District of Columbia.
April 24, 2012.
Jeremy S. Simon, U.S. Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
COLLEEN KOLLAR–KOTELLY, District Judge.
Elk Associates Funding Corporation (“ELK“) brings this action against the United States Small Business Administration (the “SBA“),1 seeking relief under the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment to the United States Constitution for the SBA‘s allegedly arbitrary and capricious conduct. Currently before the Court is ELK‘s [3] Motion for Preliminary Injunction and Temporary Restraining Order (“Motion for Preliminary Relief“).2 Upon consideration of the parties’ submissions, the relevant authorities, and the record as a whole, ELK‘s Motion for Preliminary Relief shall be DENIED.
I. OVERVIEW
Since 1980, ELK has been licensed to operate as a Small Business Investment
Beginning in March 2010, as a result of mounting losses, the condition of ELK‘s private capital had deteriorated to such a point that the company no longer met the minimum threshold set by regulation—a “condition of capital impairment” that triggered an event of default with an opportunity to cure. On July 20, 2010, the SBA notified ELK that it was in default and warned the company that it had a period of fifteen days to cure its condition of capital impairment. On August 4, 2010, ELK received a modest cash infusion, but because its financial condition had further deteriorated by that point, the cash infusion failed to cure the company‘s condition of capital impairment. In the months that followed, ELK pursued a variety of transactions with third-party investors in an attempt to secure the private capital needed to come into compliance with the applicable regulations. In the end, none of those transactions came to fruition and ELK‘s financial condition only continued to further deteriorate. On February 22, 2012, more than one year and seven months after ELK was notified that it was in default and needed to cure its condition of capital impairment, the SBA internally transferred the company to a unit responsible for the orderly liquidation of SBICs.
Thereafter, faced with ELK‘s threats of litigation, the SBA voluntarily agreed to suspend all further liquidation activities and, on March 6, 2012, the SBA issued ELK a second formal notice of its condition of capital impairment, reiterating that the company was in default and warning that it had a period of fifteen days to cure. On March 13, 2012, after ELK proposed submitting certain unfunded commitment letters as a proposed cure, the SBA provided ELK with a letter identifying potential problems with the company‘s proposed approach.
Claiming that the SBA had imposed unreasonable conditions on its ability to cure, ELK failed to submit the proposed commitment letters to the SBA within the fifteen-day period or, for that matter, at any time thereafter. Instead, ELK commenced this action on March 20, 2012, seeking relief under the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment for the SBA‘s allegedly arbitrary and capricious conduct. After the action was filed, the SBA voluntarily agreed to refrain from engaging in further liquidation activities involving ELK until and including April 25, 2012, preserving the status quo until then and affording ELK even more time to cure its condition of capital impairment.
ELK now comes to this Court seeking the extraordinary relief of a preliminary injunction, claiming that the SBA acted arbitrarily and capriciously by failing to provide the company with sufficient notice of its condition of capital impairment or a meaningful opportunity to cure. Everything in the record bespeaks to the contrary. The case comes to the Court after ELK has already been provided formal notice of its condition of capital impairment on two occasions and it is undisputed that ELK continues to have a condition of capital impairment to this day. Despite having more than one year and nine months to do so, ELK has not cured its condition of capital impairment nor has it presented this Court with any credible evidence that it can realistically do so. In fact, ELK‘s condition of capital impairment has only worsened over time. On the record presented,3 the Court concludes
II. BACKGROUND
A. Statutory and Regulatory Background
Under the Small Business Investment Act, the SBA is empowered to license private companies, including, at the time of ELK‘s licensing, corporations, as SBICs. See
1. SBICs and Capital Impairment
The SBA‘s Office of SBIC Operations, part of the Small Business Investment Division, is responsible for monitoring SBICs. It is the office that determines whether an SBIC is in compliance with applicable regulations, including, most germane to this action, those relating to “capital impairment.” Capital impairment is a concept that refers to the degree to which the private capital of an SBIC has deteriorated because of accumulated losses, both realized and unrealized, and thus serves as an important indicator of risk in the SBA‘s leverage position. See U.S. SMALL BUSINESS ADMINISTRATION, OVERSIGHT & REGULATIONS OF SBIC‘S INVESTMENT DIVISION, STANDARD OPERATING PROCEDURES 10 06 (“SOP 10 06“), ch. 6 para. 10 (2007).
Capital impairment is calculated by adding an SBIC‘s undistributed net realized loss and net unrealized depreciation and dividing the result by the SBIC‘s private capital. See
SBICs are obligated to determine whether they have a condition of capital impairment “as of the end of each fiscal quarter,” and must “promptly” notify the SBA if they do, id.
2. Capital Impairment as an Event of Default
By regulation, a condition of capital impairment is an event of default with opportunity to cure. See
As aforementioned, the SBA must afford an SBIC “at least 15 days to cure” a condition of capital impairment before invoking any available remedies. Id.
3. Transfer to the Office of SBIC Liquidation
When an SBIC “cannot or does not cure” a condition of capital impairment, it is transferred from the Office of SBIC Operations to the Office of SBIC Liquidation, the part of the Small Business Investment Division that is responsible for the orderly liquidation of SBICs. U.S. SMALL BUSINESS ADMINISTRATION, OFFICE OF SBIC LIQUIDATION, SBIC LIQUIDATION, STANDARD OPERATING PROCEDURES 10 07 1 (“SOP 10 07“), ch. 9 para. 2 (2007); see also SOP 10 06, ch. 1 para. 2(b)(4). The primary goal of the Office of SBIC Liquidation is to maximize net recoveries in liquidation, taking into consideration the time value of money, and furthering the integrity of the SBIC program while recognizing the interests of affected parties, such as the small businesses that are funded by SBICs. See SOP 10 07, ch. 1 para. 4(a).
An SBIC is said to be “in liquidation” as soon as oversight responsibility is transferred from the Office of SBIC Operations to the Office of SBIC Liquidation. See SOP 10 06, ch. 9 para. 1. Several factors may affect the determination of precisely when transfer is appropriate, including,
“In most cases,” an SBIC will be provided advance notice of a “possible transfer” to the Office of SBIC Liquidation. SOP 10 06, ch. 9 para. 4. In addition, “[o]nce a licensee has been transferred, the Office of SBIC Liquidation will send a letter notifying the licensee of the transfer.” Id.
4. Acceleration of an SBIC‘s Debentures in Liquidation
When an SBIC is transferred to the Office of SBIC Liquidation, “payment of [the SBIC‘s] debentures is accelerated.” SOP 10 06, ch. 9 para. 5. Although consistently conflated by ELK, there are actually two distinct steps in this process. As a first step, the SBA “will arrange to repurchase the licensee‘s debentures ... from the pool[ing] [institution] by notifying the trustee of the acceleration of the debentures.” Id. At that point, the SBA holds the debentures directly and, after providing “written notice” to the SBIC, the SBA may accelerate the SBIC‘s payment by declaring the SBIC‘s entire indebtedness, including accrued interest and any other amount owed, “immediately due and payable.”
5. Transfer Back to the Office of SBIC Operations
When an SBIC is transferred to the Office of SBIC Liquidation, liquidation is not inevitable. Rather, provided “certain conditions are met, the Office of SBIC Liquidation can recommend that a licensee be transferred back to [the Office of SBIC Operations].” SOP 10 06, ch. 9 para. 6. The Office of SBIC Operations “may impose [any] conditions deemed necessary at the time of transfer,” but an SBIC must, “[a]t a minimum, ... demonstrate viability and meet the licensing standards in effect at the time of the proposed transfer.” Id.
One of the ways an SBIC may increase its private capital to cure a condition of capital impairment is through a cash infusion. Sometimes, transactions by which third parties infuse cash into an SBIC are structured in such a manner that they result in a change in control of the SBIC, either through a change in ownership or otherwise. By regulation, an SBIC must obtain the SBA‘s prior written approval of any proposed transaction that results in a change in control by an individual or entity that has not previously been approved by the SBA. See
On this final point, the so-called management-ownership diversity (“MOD“) requirement has its roots in the SBA‘s statutory duty to ensure that the management of new SBICs—specifically, those licensed after September 30, 1996—are “sufficiently
The MOD requirement can be further divided into three separate sub-requirements, only one of which has much bearing on this case—the percentage ownership requirement. See
A second way an SBIC may increase its private capital to cure a condition of capital impairment is by obtaining unfunded binding commitments by qualified institutional investors. To qualify, an institutional investor must have a net worth of at least $1 million. See id.
B. Case-Specific Background6
ELK, a wholly owned subsidiary of Ameritrans Capital Corporation (“Ameritrans“), was first licensed as an SBIC in 1980.7 Over the years, it has received substantial financial assistance from the SBA. Today, ELK has approximately $21,175,000 of outstanding debentures that were issued between July 2002 and December 2009. A.R. 14.8 This figure re-
Notes
1. ELK‘s Condition of Capital Impairment
On June 21, 2010, ELK submitted its interim Form 468 for the fiscal quarter ending on March 31, 2010. A.R. 3. ELK‘s submission was more than a month and three weeks late. ELK should have submitted its interim Form 468 by no later than April 30, 2010. See
After reviewing the financial information provided by ELK in its Form 468, the SBA‘s Office of SBIC Operations determined that ELK had exceeded its maximum allowable capital impairment percentage—that is, 40%—an event of default with opportunity to cure. See
On July 20, 2010, the Office of SBIC Operations sent ELK a letter (the “Cure Letter“) notifying the company that its 40.1% capital impairment percentage as of March 31, 2010 exceeded the maximum allowable threshold and “instruct[ing] [ELK] to cure its condition of Capital Impairment, no later than 15 days from the date of th[e] letter [i.e., August 4, 2010], to SBA‘s satisfaction.” A.R. 14. The Cure Letter expressly warned ELK that “[i]n the event that the condition of Capital Impairment [was] not cured by that date, SBA m[ight] invoke remedies pursuant to § 107.1810(g) to protect its interest.” A.R. 14.
By letter dated August 3, 2010, ELK responded to the Cure Letter.9 A.R. 54.
In its letter, ELK conceded that it “was not in compliance with the cited regulations as of March 31, 2010,” and then continued to state that ELK “ha[d] carefully reviewed this issue and ha[d] formulated a plan to bring [ELK] into compliance, on a pro forma basis, by August 4, 2010 as you have required.” A.R. 54. Specifically, ELK represented that its corporate parent, Ameritrans, would “invest $40,000 of new paid-in capital into [ELK] by August 4, 2010 and thereby cure [ELK‘s] capital impairment violation.” A.R. 54. ELK would thereafter “submit a new capital certificate to SBA demonstrating the basis for [its] compliance with the applicable regulations as well as a pro forma 468 reflecting the infused capital.” A.R. 54.
On September 1, 2010, an Account Executive in the Office of SBIC Operations, unaware of ELK‘s letter dated August 3, 2010, reminded ELK that the Cure Letter required a response within fifteen days and indicated that the agency had no record of ELK submitting a response, something that prompted ELK to send another copy of the company‘s responsive letter dated August 3, 2010. A.R. 50, 52. Two days later, with ELK‘s response in hand, the Office of SBIC Operations asked ELK to provide a copy of the capital certificate referenced in the company‘s letter dated August 3, 2010. A.R. 63. When a copy of the capital certificate was not forthcoming, the Office of SBIC Operations requested a copy again on September 17, 2010, and again on September 20, 2010. A.R. 65, 77, 1762.
On September 22, 2010, ELK told the Office of SBIC Operations that it intended to “submit a new capital certificate and revised a [sic] pro forma 468 (for the peri-od ending 3/31/10) by Monday September 27th.” A.R. 79. The following day, the Office of SBIC Operations responded, rejecting ELK‘s suggested approach. A.R. 79. In its response, the Office of SBIC Operations instructed ELK that “the new capital certificate and pro forma 468 would not be as of 3/31/10,” that instead “[t]he appropriate date would be the date of the capital infusion which took place subsequent to 3/31/10,” and that as a result “there would not be any adjustments to [ELK‘s] 3/31/10 financials.” A.R. 79. In other words, ELK was on notice that its condition of capital impairment would be evaluated on an ongoing basis, or at the very least as of the date of the capital infusion, and not for the fiscal quarter ending on March 31, 2010. Despite these express instructions, by letter dated September 29, 2010, ELK submitted a capital certificate based on ELK‘s Form 468 for the fiscal quarter ending on March 31, 2010. A.R. 105-16. Subsequently, on October 6, 2010, ELK submitted a letter from its banking institution confirming that $40,000 was deposited into its account on August 4, 2010. A.R. 123-24.
On October 19, 2010, ELK submitted a draft of its annual Form 468 for the fiscal year ending on June 30, 2010, and it submitted a final version on November 22, 2010. A.R. 172-81. Even if ELK‘s first submission had been in final form, it would have been untimely. ELK should have submitted its annual Form 468 by no later than September 30, 2010. See
2. The Proposed CN Transaction
On February 8, 2011, approximately seven months and two weeks after the Cure Letter, ELK sent a letter to the Office of SBIC Operations, acknowledging that it had an “existing condition of capital impairment” and informing the Office of SBIC Operations that its corporate parent, Ameritrans, “ha[d] been actively seeking new capital investment.” A.R. 213. ELK then proceeded to describe a “possible” transaction through which a third-party investor, an entity managed by Columbus Nova Partners, LLC (“CN“), would channel a minimum of $25 million in cash into ELK through Ameritrans (the “CN Transaction“). A.R. 213. In addition, ELK informed the Office of SBIC Operations that a subsidiary of the proposed investor had extended Ameritrans a loan in the amount of $1.5 million in order to fund Ameritrans’ “working capital needs” and that, in exchange, Ameritrans had pledged all of its stock in ELK as security. A.R. 214. ELK further indicated that another agreement could follow, “lead[ing] to another more significant investment in Ameritrans ... under conditions which [would] result in an indirect change of ownership of Ameritrans and perhaps control of [ELK].” A.R. 214.
The Office of SBIC Operations responded on March 31, 2011 by notifying ELK that, in the agency‘s view, the pledge of ELK‘s stock constituted a change of control requiring the SBA‘s prior approval under the applicable regulations.10 A.R. 275. On April 15, 2011, ELK assured the SBA that the closing of the CN Transaction was “specifically predicated on obtaining prior written SBA [a]pproval” and that it would terminate the transaction “[i]f prior written SBA [a]pproval is not obtained.” A.R. 416.
On April 5, 2011, while discussions surrounding the proposed CN Transaction were still ongoing, ELK submitted an updated capital impairment percentage calculation to the Office of SBIC Operations. A.R. 282. Consistent with its prior representations, ELK continued to acknowledge that it had an ongoing condition of capital impairment. A.R. 284. Indeed, by ELK‘s calculation, which the Office of SBIC Operations later confirmed, ELK‘s capital impairment percentage had risen to 46.64% as of December 31, 2010. A.R. 282, 284.
On May 3, 2011, the Office of SBIC Operations, acknowledging that the terms of the proposed CN Transaction would cure ELK‘s condition of capital impairment, recommended to the SBA‘s Investment Committee that ELK be permitted to pursue its proposal further and, to that end, suggested a meeting between ELK and the Investment Committee. A.R. 437-39. The Investment Committee adopted the recommendation on May 10, 2011, conditioning the occurrence of a meeting on ELK first submitting information about its management team. A.R. 498. Minutes from the session of the Investment Com-mittee evidence that its members were concerned with management‘s ability to execute the anticipated investment strategy and the qualifications of the proposed new members of the management team, who had apparently been denied a “green light” letter in the past. A.R. 498.
On May 10, 2011, while these discussions were still ongoing, ELK submitted another updated capital impairment percentage calculation to the Office of SBIC Operations. A.R. 483. ELK continued to acknowledge its ongoing condition of capital impairment and, consistent with the past trend, ELK‘s capital impairment percentage had again risen—to 51.31% as of March 31, 2011. A.R. 494.
The months that followed involved ELK and CN submitting additional information to the SBA for its consideration, as well as a series of communications and meetings between the Office of SBIC Operations, the Investment Committee, ELK, and CN. On July 12, 2011, approximately three weeks after ELK informed the agency that the new investor in the proposed transaction would be a different entity managed by CN, the Investment Committee met with ELK‘s representatives. A.R. 593-94, 710-11. During this meeting, ELK was informed that the proposed CN Transaction, as modified, would likely be treated as if it were a new license application in light of its effect on the control of ELK and, for that reason, ELK would have to proceed through the SBA‘s licensing process on an abbreviated schedule. A.R. 711. The Investment Committee also raised concerns about the proposed transaction‘s compliance with the MOD requirement—specifically, the percentage ownership requirement. A.R. 711. On July 26, 2011, the Investment Committee again met with representatives of ELK, as well as representatives of CN. A.R. 777, 800-01. During this meeting, and in a subsequent memorandum by its legal counsel, ELK expressed its view that, in lieu of treating the proposed transaction as a new license application and conditioning approval on ELK‘s compliance with the MOD requirement, the SBA should consider “grandfathering” ELK for MOD purposes. A.R. 800, 1011-16. In particular, ELK argued that Ameritrans qualified as a “traditional investment company” exempt from the MOD requirement. A.R. 1014. During the July 26, 2011 meeting, the SBA told ELK that it would consider whether “grandfathering” was appropriate, but, at the same time, ELK was put on notice that if the transaction was not approved, consideration would have to be given to transferring ELK to the Office of SBIC Liquidation. A.R. 800. On August 18, 2011, representatives of ELK and CN met with the Associate Administrator for Investment. A.R. 989.
On September 7, 2011, ELK informed the SBA that, “[w]ith respect to compliance with management and ownership diversity, [ELK] ha[d] negotiated an economic relationship whereby CN will own less than 70% of the equity of Ameritrans and the balance will be held by existing public shareholders and other investors to be determined.” A.R. 1191. On September 19, 2011, after a series of internal and external communications, the SBA formally notified ELK that, in the agency‘s view, “the proposed transaction would not satisfy the requirements of § 107.150 management-ownership diversity requirement” and that ELK “does not qualify for an exception.”11 A.R. 1198. The SBA in-
formed ELK that it would consider the new ownership structure proposed by ELK in its September 7, 2011 communication, but advised that “[f]or SBA to proceed with review of the change of ownership and control request, [ELK] must provide a specific proposed ownership structure identifying each of the new investor(s), the dollar amount they will invest, and their ownership percentage post-transaction.” A.R. 1198.
Approximately two weeks later, on October 3, 2011, the SBA inquired as to the status of ELK‘s response to the agency‘s September 19, 2011 letter. A.R. 1221. On October 20, 2011, one year and three months after the SBA issued the Cure Letter, the SBA began internally deliberating about the possibility of transferring ELK to the Office of SBIC Liquidation. A.R. 1266. However, on November 15, 2011, ELK submitted a response to the SBA‘s September 19, 2011 letter. A.R. 1277. In its response, ELK described a modified transaction in which CN would hold less than 70% of Ameritrans’ stock, the existing management team would remain in place, and the management of both Ameritrans and ELK would report to the Board of Directors of each company. A.R. 1277-89. The next day, the SBA informed ELK that it was actively reviewing the company‘s response, informing ELK that the earliest the modified structure could be presented to the Investment Committee would be in December 2011. A.R. 1315. In preparation for that presentation, the SBA requested, and ELK provided, further information regarding the modified transaction. A.R. 1319, 1333-41.
On December 6, 2011, following oral communications with ELK‘s representatives, the SBA notified ELK in writing that the proposed transaction, even as modified, still “may not satisfy diversity requirements.” A.R. 1474. The SBA‘s December 6, 2011 communication identified three concerns relating to the MOD requirement: (1) whether the new capital infusion would effectively be provided by a single entity on behalf of the new investors; (2) whether stock contributions by new investors, as non-cash assets, would qualify as regulatory capital; and (3) whether the new proposed investors were sufficiently unaffiliated. A.R. 1474. During a session held on December 20, 2011, the Investment Committee considered the opinion of the Office of SBIC Operations and the Office of General Counsel that ELK‘s proposed transaction still did not satisfy the MOD requirement, and voted to deny ELK‘s request for a change of ownership and control. A.R. 1572. On December 22, 2011, the SBA formally notified ELK of its decision, stating that “the revised proposed structure does not satisfy the requirements of MOD as specified in the [agency‘s] regulations (§ 107.150).” A.R. 1574. The SBA also identified a number of other concerns, the “cumulative impact” of which “put approval by SBA at risk even if MOD can be satisfactorily resolved.” A.R. 1574-75. Those concerns included the adequacy of the management team and ELK‘s prospective investment strategy. A.R. 1575.
On January 9, 2012, CN withdrew the proposed transaction from the SBA‘s consideration.12 A.R. 1578. In so doing, CN expressed its appreciation to the SBA for its “extensive consideration of [the] proposed investment.” A.R. 1578.
3. The Proposed BDC Transaction
On February 1, 2012, several weeks after the CN Transaction had been withdrawn and more than one year and six months after the Cure Letter, the Office of SBIC Operations recommended to the Associate Administrator for Investment that ELK be transferred to the Office of SBIC Liquidation. A.R. 1580. In its recommendation, the Office of SBIC Operations indicated that (1) ELK had been issued the Cure Letter on July 20, 2010, (2) in the succeeding months ELK‘s capital impairment percentage “increased to 59% due to additional unrealized losses and operating expenses,” (3) ELK‘s various proposals to cure its condition of capital impairment by raising additional private capital had been denied, and (4) ELK‘s financial performance was unlikely to cure its condition “in a reasonable time frame.” A.R. 1580.
The following day, February 2, 2012, ELK informed the SBA that CN “has indicated that they [sic] are no longer interested in pursuing a transaction,” but provided that it was “seeking a new equity investor” and intended to submit yet another proposal for raising private capital for the agency‘s review. A.R. 1583. Attached to ELK‘s February 2, 2012 communication was an overview of the proposed transaction. A.R. 1584-1612. Consistent with the parties’ usage, the Court shall refer to the proposed new investor as “BDC” and the proposed transaction as the “BDC Transaction.” Subsequent communications with ELK revealed that the transaction would involve a $10 million cash infusion from BDC, both ELK and Ameritrans would become subsidiaries of BDC, and two of BDC‘s principals would be added to ELK‘s management and constitute ELK‘s Investment Committee. A.R. 1620.
The SBA advised ELK that the proposed transaction would be treated as a new license application and requested additional information from the company. A.R. 1620, 1669. In particular, the SBA advised ELK that it needed to submit a term sheet “as complete as possible,” informing ELK that the SBA‘s Investment Committee would render a decision on the information provided and advising ELK to “put [its] best foot forward.” A.R. 1669. ELK submitted a term sheet outlining the proposed transaction on February 9, 2012. A.R. 1674. On February 13, 2012, the Office of SBIC Operations sent ELK a series of questions about the proposed transaction, to which ELK responded in writing and orally on February 14, 2012. A.R. 1694, 1712-16. In its written responses, ELK acknowledged its continued condition of capital impairment. A.R. 1715. ELK also outlined its expectations as to the time frame for resolving its proposal. ELK stated that it hoped to receive “preliminary approval” from the SBA by mid-March 2012 and, assuming that ELK and BDC received “enough comfort,” they intended to “move forward with drafting definitive documentation, preparing a proxy statement and arranging for shareholder votes,” which ELK anticipated would be completed by mid-June 2012. A.R. 1715.
On February 15, 2012, the Office of SBIC Operations recommended to the In-vestment Committee that it deny ELK a “move forward” ruling and instead transfer ELK to the Office of SBIC Liquidation. A.R. 1720. As grounds, the Office of SBIC Operations first found that ELK‘s term sheet was “not definite enough to reasonably predict the path that will lead to consummation of the acquisition to SBA‘s satisfaction.”13 A.R. 1720. It next found that “[a]lthough the $10 million capital infusion [would] initially cure [ELK‘s] condition of Capital Impairment,” it would “not leave much room for error” because ELK‘s “financial performance ha[d] deteriorated over time.” A.R. 1720. It concluded by noting that ELK “had at least $1 million of net losses in each of the last three fiscal years” and had “$5 million of leverage due to SBA within the next 12 month[s],” limiting the “cash available for investment activities.” A.R. 1720. During a session held on February 16, 2012, the members of the Investment Committee unanimously agreed to give no further consideration to the proposal. A.R. 1737. Minutes from the session suggest that the Investment Committee was concerned that a new license application could not be approved in the time frame required and that the cash infusion provided by the transaction would not provide a meaningful benefit. A.R. 1736-37.
On February 27, 2012, the SBA formally notified ELK of its decision. A.R. 1754. The SBA provided that, “[a]fter significant discussion, the Investment Division ha[d] concluded that the proposal does not address [ELK‘s] financial condition to the SBA‘s satisfaction,” citing a concern that the $10 million capital infusion would not “have a lasting positive effect” given ELK‘s “deterioration and maturing Debenture leverage within the next 12 months,” as well as issues with the current management team. A.R. 1754.
4. ELK‘s Transfer to the Office of SBIC Liquidation
On February 21, 2012, shortly after the Investment Committee voted to discontinue consideration of the BDC Transaction, the Office of SBIC Operations informed ELK that “[g]iven that [ELK] has not been able to cure its condition of capital impairment, the Office of SBIC Operations will be recommending that [ELK] be transferred to the Office of Liquidation.” A.R. 1741. The decision to transfer ELK to the Office of SBIC Liquidation was finalized on February 22, 2012, more than one year and seven months after the Cure Letter. A.R. 1742-43. The stated reason for the transfer decision was as follows:
The Licensee initially developed a condition of Capital Impairment as of 3/31/10 with a Capital Impairment Percentage (“CIP“) of 40.1%. Its maximum permissible CIP is 40%. SBA sent out a 15 day Cure Letter on 7/20/10. SBA has since considered several proposals put forth by the Licensee to cure its condition of Capital Impairment. After significant discussion and consultation with the Office of General Counsel, SBA concluded that the proposals did not satisfy regulatory requirements. As of 9/30/11, the Licensee‘s CIP increased to 59%.
A.R. 1742. ELK was notified of the transfer decision on February 23, 2012. A.R. 1744.
On February 24, 2012, ELK responded by asking the SBA to “confirm ... that the SBA will be providing [ELK] with formal notice under
5. The Second Cure Letter
On March 6, 2012, the SBA sent ELK another cure letter (the “Second Cure Letter“), stating that ELK “has a condition of Capital Impairment based on its last SBA Form 468 dated September 30, 2011, which revealed a Capital Impairment Percentage of 59%.” A.R. 1818. The SBA “direct[ed] [ELK] to cure the violation to SBA‘s satisfaction within fifteen (15) days from the date of th[e] letter“—that is, by March 21, 2012—and warned that, absent timely cure, “SBA may avail itself of any and all legal remedies available to it under Section 107.1810(g) of the Regulations, which include declaring [ELK‘s] total indebtedness to SBA immediately due and payable and/or the institution of legal proceedings seeking the appointment of SBA as [ELK‘s] receiver.” A.R. 1818. At the same time, the SBA maintained that it “never determined that the $40,000 increase in Regulatory Capital [on August 4, 2010] constituted a satisfactory cure of [ELK‘s] condition of Capital Impairment.” A.R. 1819. It reiterated that, “by the time that SBA was made aware of [ELK‘s] intent to cure its condition of Capital Impairment by the $40,000 increase to Regulatory Capital, [ELK‘s] CIP had increased to 43.5%.” A.R. 1819. The SBA stated its position that ELK was informed during the October 19, 2010 portfolio meeting that “the $40,000 capital contribution was not considered a satisfactory plan to cure its condition of Capital Impairment.” A.R. 1819. The SBA concluded the Second Cure Letter by advising ELK that, “[n]otwithstanding the transfer to the Office of Liquidation, SBA will suspend liquidation activities for a period of 15 days from the date of this letter to allow [ELK] an opportunity to cure its condition of Capital Impairment to SBA‘s satisfaction.” A.R. 1819.
On March 8, 2012, ELK acknowledged receipt of the Second Cure Letter. A.R. 1821. After stating its disagreement with the SBA‘s position in general and non-specific terms, ELK indicated that the company would “concentrate on ELK‘s efforts to cure the default” and that, “[t]o that end, Ameritrans continue[d] to actively engage with various potential investors.” A.R. 1821. ELK represented that it intended to deliver “binding commitment letters prior to the expiration of the cure period“—that is, by March 21, 2012. A.R. 1821.
On March 13, 2012, the SBA responded to ELK‘s stated intention to deliver “binding commitment letters” as a cure for its condition of capital impairment. A.R. 1832. The SBA advised ELK that, “[a]t this time, [the] SBA cannot determine whether [the company‘s] proposed cure [would] satisfactorily resolve [its] condition of Capital Impairment.” A.R. 1833. In particular, the SBA advised ELK that it would apply the guidance articulated in the SBA‘S TECHNOTE 13: GUIDELINES CONCERNING DEBENTURE APPLICANTS STRUCTURED AS A BUSINESS DEVELOPMENT COMPANY OR BDC SUBSIDIARY (“TechNote 13“) “to determine whether binding commitments to [Ameritrans] will qualify as Regulatory Capital.” A.R. 1833. In this regard, the SBA noted that Ameritrans’ net worth was negative as of December 31, 2011, and on that basis stated that “it is likely that any [] commitments from [Ameritrans] to [ELK] will need to be funded to qualify as Regulatory Capital.” A.R. 1833. However, the SBA clearly stated that it could not, at that time, render a final decision, and instructed ELK to submit additional information, including “the fully executed binding commitment letters” and an “updated capital certificate.” A.R. 1833.
ELK responded the following day, March 14, 2012, contending that the SBA‘s had imposed “new and unreasonable conditions” in its latest correspondence. A.R. 1838, 1841. In its response, ELK took the position that TechNote 13 was inapplicable because it applies only to new applicants. A.R. 1839. Furthermore, ELK stated that it still intended to “provide binding commitment letters from qualified investors in an amount sufficient to cure [ELK‘s]” condition of capital impairment, and further advised that “[t]he commitment letters will state that the entire amount of the investment will be invested into Ameritrans and then be immediately invested by Ameritrans into [ELK].” A.R. 1840. However, ELK offered the proviso that, “given that Ameritrans is a public company, the commitment letter[s] will provide that the commitments will be invested into Ameritrans immediately upon receipt of any shareholder approval that may be required prior to the investment,” though it claimed that “Ameritrans has the ability to lock-up approximately 45% of the voting shares, effectively insuring shareholder approval.” A.R. 1840. ELK concluded by unilaterally asserting that the SBA‘s “March 13, 2012 letter effectively served as a modification of the March 6th letter and ‘reset’ the 15 day notice,” and asserted that it would “consider March 29, 2012, as the date required to cure the Capital Impairment.” A.R. 1844.
On March 19, 2012, the SBA responded in turn, stating that “[t]he purpose of the SBA‘s March 13, 2012 letter was to provide feedback on [ELK‘s] proposed cure method so that [the company] did not pursue a cure that, in the end, would not be to SBA‘s satisfaction.” A.R. 1846. The SBA took the position that it was not “imposing new requirements” on ELK, claiming that TechNote 13 “codified SBA‘s policy in determining whether a parent business development company,” like Ameritrans, “qualified as an Institutional Investor.” A.R. 1846. The SBA noted that, because Ameritrans’ “net worth is negative as of December 31, 2011, it is likely that any commitments from [Ameritrans] to [ELK] will need to be funded to qualify as Regulatory Capital.” A.R. 1846. The SBA also observed that because ELK appeared to plan on conditioning the anticipated commitment letters on shareholder approval, they would “appear to be subject to a condition precedent making the commitment letters non-binding and thus not eligible to be counted towards Regulatory Capital.” A.R. 1846. Finally, the SBA rejected ELK‘s unilateral interpretation of the agency‘s March 13, 2012 letter, reaffirming that the cure period would expire on March 21, 2012. A.R. 1847.
It is undisputed that ELK continues to have a condition of capital impairment. It is similarly undisputed that, to date, ELK has not submitted any binding commitment letters to the SBA for its consideration.
C. Procedural History
ELK commenced this action on March 20, 2012, seeking relief under the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment to the United States Constitution for what it claims is the SBA‘s arbitrary and capricious conduct. See Compl., ECF No. [1]. ELK filed its Motion for Preliminary Relief the same day. See Pl.‘s Mem. in Supp. of Mot. for Prelim. Inj. & TRO (“Pl.‘s Mem.“), ECF No. [3-2]. Upon receipt of ELK‘s motion, the Court immediately contacted the parties in order to schedule further proceedings. At that point, the parties jointly represented that they had reached an agreement to suspend any liquidation activities involving ELK through and including April 5, 2012. See Min. Order (Mar. 20, 2012). The Court held an expedited in-person Scheduling Conference on March 21, 2012. ELK‘s Complaint is prolix and disjointed, rattling off a litany of complaints about how the SBA has treated the company over the parties’ long relationship. Because this approach rendered it impossible to ascertain which of the SBA‘s actions were actually at issue, a fair amount of the Court‘s attention during the Scheduling Conference was directed towards attempting to get ELK to specifically identify the precise administrative action it intended to challenge in connection with its Motion for Preliminary Relief. See Tr. of Initial Scheduling Conf. at 13-19. In addition, during the Scheduling Conference, the parties represented that they had reached a further agreement to suspend any liquidation activities through and including April 25, 2012, preserving the status quo until then. See id. at 4-5, 28-29. On March 21, 2012, the Court set an expedited schedule for the briefing of ELK‘s Motion for Preliminary Relief and denied without prejudice ELK‘s Motion for Preliminary Relief insofar as it constituted a motion for a temporary restraining order, since ELK had already obtained the relief sought thereby through the SBA‘s voluntary agreement. See Scheduling & Procedures Order (Mar. 21, 2012), ECF No. [7]; Order (Mar. 21, 2012), ECF No. [6]. Accordingly, ELK‘s Motion for Preliminary Relief remains extant only insofar as it constitutes a motion for a preliminary injunction.
Outside the scope of the Court‘s schedule, and without prior leave of the Court, ELK filed a supplement to its Motion for Preliminary Relief on March 26, 2012. See Supplemental Aff. of Michael Feinsod, ECF No. [10].14 On March 29, 2012, in accordance with the Court‘s schedule, the SBA filed the certified Administrative Record. See ECF No. [13]. On April 2, 2012, the Court held an expedited on-the-record telephonic conference to discuss the parties’ dispute over the scope of the record and the SBA‘s privilege log. During that conference, ELK clarified that, in connection with its Motion for Preliminary Relief, it is presently challenging only (1) the SBA‘s decision to transfer ELK to the Office of SBIC Liquidation on February 22, 2012, and (2) the SBA‘s Second Cure Letter dated March 6, 2012 and the conditions purportedly placed on the Second Cure Letter in the SBA‘s letter dated March 13, 2012.15 See Tr. of Apr. 2, 2012
Telephone Conf. at 33-34, 50-51; see also Min. Order (Apr. 2, 2012) (memorializing the same). On April 5, 2012, consistent with the Court‘s instructions during the April 2, 2012 conference, the SBA filed a small supplement to the Administrative Record. See ECF No. [16]. On April 9, 2012, the SBA filed its Opposition to ELK‘s Motion for Preliminary Relief. See Def.‘s Opp‘n to Pl.‘s Mot. for Prelim. Inj. (“Def.‘s Opp‘n“), ECF No. [18]. On April 11, 2011, the Court held an expedited on-the-record telephonic conference to resolve the parties’ dispute regarding certain items on the SBA‘s privilege log. On April 12, 2012, ELK filed its Reply. See Pl.‘s Reply Mem. in Supp. of Mot. for Prelim. Inj. (“Pl.‘s Reply“), ECF No. [22]. On April 16, 2012, after carefully considering the parties’ submissions, the Court advised the parties that it would exercise its discretion to decide the motion on the papers and without hearing live testimony or oral argument. See Min. Order (Apr. 16, 2012) (citing
III. PRELIMINARY MATTERS
As a threshold matter, SBA contends that this Court is precluded from granting ELK injunctive relief by virtue of
THE COURT: * * * If we can clarify, I take it—and I did not go back and look, but I take it then you‘re challenging on both the APA and due process, you‘re challenging the transfer to the Liquidation Unit as well as what you view as conditions in the letter to cure. Is that an accurate statement, so we know what‘s at issue?
MR. HEYMAN: So it‘s absolutely clear * * * We‘re challenging the conditions that were placed on the March 6th letter by the March 13th e-mail or letter, which incorporated TechNote 13, and we‘re also challenging the transfer to Liquidation for purposes of the preliminary injunction.
THE COURT: So, it‘s the March 6th and the March 13th letters, in essence.
MR. HEYMAN: And the transfer to Liquidation.
Tr. of Apr. 2, 2012 Telephone Conf. at 50-51.
In the performance of, and with respect to, the functions, powers, and duties vested in [her] by this chapter the Administrator [of the SBA] may ... sue and be sued ... in any United States district court, and jurisdiction is conferred upon such district court to determine such controversies without regard to the amount in controversy; but no attachment, injunction, garnishment, or other similar process, mesne or final, shall be issued against the Administrator or [her] property[.]
The question that remains is whether injunctive relief is available in a broader set of cases. The SBA contends, in essence, that so long as it has not clearly acted outside its statutory authority, no injunction may issue from this Court even if the SBA‘s actions are arbitrary, capricious, or an abuse of discretion. In other words, SBA claims that injunctive relief is unavailable provided there is a colorable basis for concluding that the agency acted within its enumerated powers. Cf. OneSimpleLoan v. U.S. Sec‘y of Educ., 2006 WL 1596768, at *5 (S.D.N.Y. June 9, 2006), aff‘d, 496 F.3d 197 (2d Cir.2007), cert. denied, 552 U.S. 1180, 128 S.Ct. 1220, 170 L.Ed.2d 60 (2008). Is the availability of injunctive relief, as the SBA suggests, confined to those instances in which the SBA clearly exceeds its statutory authority? Or does it, as ELK suggests, also extend to those cases in which the SBA acts in a manner that is arbitrary, capricious, or an abuse of discretion under the Administrative Procedure Act?17
Unfortunately, the legislative history and case law relating to Section 634(b)(1) provide little guidance in answering these questions. The legislative history of Section 634(b)(1) itself is silent on the precise purpose behind the anti-injunction language chosen by Congress. See Ulstein Mar., Ltd. v. United States, 833 F.2d 1052, 1056-57 (1st Cir.1987); Related Indus., Inc. v. United States, 2 Cl.Ct. 517, 522 (Ct.Cl.1983). However, the same anti-injunction language is frequently found in statutes defining the powers of agencies that provide loans or funds to the public. See, e.g.,
In interpreting Section 634(b)(1), this Court must be guided by the United States Supreme Court‘s instruction that “such sue-and-be-sued waivers are to be liberally construed, notwithstanding the general rule that waivers of sovereign immunity are to be read narrowly in favor the sovereign.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 480, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (internal quotations marks and citation omitted); see also Fed. Housing Admin., Region No. 4 v. Burr, 309 U.S. 242, 245, 60 S.Ct. 488, 84 L.Ed. 724 (1940). For this reason, the idea of construing Section 634(b)(1) to grant the SBA any greater immunity from injunctive relief under the Administrative Procedure Act than is enjoyed by other federal agencies gives this Court pause. Cf. Cavalier Clothes, Inc. v. United States, 810 F.2d 1108, 1112 (Fed.Cir.1987) (“[N]othing either in the language or legislative history of § 634 suggests that Congress intended to grant the SBA any greater immunity from injunctive relief than that possessed by other governmental agencies.“). At the same time, the Court harbors some concern that the specific injunctive relief sought by ELK in this case could implicate the sort of interference with “the agency‘s assets” that other courts have suggested falls within the ambit of Section 634(b)(1)‘s anti-injunction language.18 Ulstein, 833 F.2d at 1056.
Ultimately, the Court need not resolve these difficult questions about the scope of Section 634(b)(1) and its application to this case. For the reasons set forth below, even assuming the availability of injunctive relief as a hypothetical matter, the Court concludes that ELK has failed to satisfy the traditional four-part test for a preliminary injunction.
IV. LEGAL STANDARD
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 21, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking a preliminary injunction must establish that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of the equities tips in its favor, and (4) an injunction would be in the public interest. Id. at 20, 129 S.Ct. 365. Historically, these four factors have been evaluated on a “sliding scale” in this Circuit, such that a stronger showing on one factor could make up for a weaker showing on another. See Davenport v. Int‘l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C.Cir.1999). Recently, the continued viability of that approach has been called into some doubt, as the United States Court of Appeals for the District of Columbia Circuit has suggested, without holding, that a likelihood of success on the merits is an independent, free-standing requirement for a preliminary injunction. See Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C.Cir.2011); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C.Cir.2009). However, absent binding authority or clear guidance from the Court of Appeals, the Court considers the most prudent course to bypass this unresolved issue and proceed to explain why a preliminary injunction is not appropriate under the “sliding scale” framework. If a plaintiff cannot meet the less demanding “sliding scale” standard, then it cannot satisfy the more stringent standard alluded to by the Court of Appeals.
V. DISCUSSION
Through its Motion for Preliminary Relief, ELK seeks a preliminary injunction:
- Requiring the SBA to issue ELK a right to cure letter presenting ELK with a “commercially reasonable” period to present commitment letters reflecting funds to bring its capital impairment percentage to 40% or lower;
- Suspending any liquidation activities by the Office of SBIC Liquidation during the pendency of this action;
- Enjoining the SBA from taking any action that would affect ELK‘s status as an SBIC licensee; and
- Commanding the SBA to issue a public statement, or allowing ELK to represent to investors, that the SBA will not accelerate ELK‘s obligations on its debentures.19
Considering the record as a whole, the Court finds that ELK has failed to make a “clear showing” that it is entitled to the “extraordinary relief” of a preliminary injunction. Winter, 555 U.S. at 21, 129 S.Ct. 365. Accordingly, ELK‘s Motion for Preliminary Relief shall be DENIED.
A. Likelihood of Success on the Merits
ELK, as the party seeking a preliminary injunction, bears the burden of establishing that it is likely to succeed on the merits. See Winter, 555 U.S. at 20, 129 S.Ct. 365. ELK claims that a preliminary injunction should issue in this case because the SBA‘s alleged conduct ran afoul of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment.20 Specifically, ELK challenges: (1) the SBA‘s decision to transfer ELK to the Office of SBIC Liquidation on February 22, 2012; and (2) the SBA‘s Second Cure Letter dated March 6, 2012 and the conditions purportedly placed on the Second Cure Letter in the SBA‘s letter dated March 13, 2012.21 Upon a searching review of the record, the Court concludes that ELK has not carried its burden of establishing that it is likely to succeed on the merits in either regard.
Before proceeding to the heart of the matter, however, the Court pauses to observe that whenever ELK is dissatisfied with a decision made by the SBA, its re-peated refrain is that the agency acted in bad faith. Suffice it to say that ELK‘s conclusory and speculative assertions, unsupported by any competent evidence, are patently insufficient to overcome the presumption of administrative regularity. See United States v. Chem. Found., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absent of clear evidence to the contrary, courts presume that they have properly discharged their official duties.“). Moreover, the record belies ELK‘s speculation. The SBA afforded ELK countless opportunities to come into compliance and afforded ELK‘s many shifting proposals due consideration. It is wholly unsurprising that the SBA, holding over $21 million in outstanding debentures from a company whose financial condition had been steadily deteriorating over a period of more than a year and seven months, would consider protecting its leverage position through the very mechanism contemplated by the statutory and regulatory scheme—namely, liquidation. At the end of the day, the SBA‘s ultimate responsibilities in this context are to maximize net recoveries of public funds and to further the integrity of the SBIC program while recognizing the interests of affected parties. Everything in the record evidences that the SBA gave ELK‘s unfortunate financial condition its due when balancing these interests.
1. Transfer to the Office of SBIC Liquidation
The SBA transferred ELK from the Office of SBIC Operations to the Office of SBIC Liquidation on February 22, 2012, a step that officially put the company “in liquidation.” SOP 10 06, ch. 9 para. 1. Whether a transfer to the Office of SBIC Operations is appropriate has two components—the first procedural and the second substantive. In this case, ELK‘s arguments focus almost exclusively on the procedural side of the inquiry, and so the Court begins there.
i. Procedural Compliance
Before transferring an SBIC to the Office of SBIC Liquidation, the SBA must provide the SBIC with “written notice” of its condition of capital impairment and afford the SBIC “at least 15 days to cure the default(s).”
Nonetheless, ELK maintains that the SBA‘s transfer decision was procedurally defective because the Cure Letter was no longer in effect at the time of the transfer, a contention that rises and falls on ELK‘s belief that it cured its condition of capital impairment on August 4, 2010, when it received a $40,000 cash infusion from Ameritrans. However, the Court simply cannot agree that ELK is likely to show that it actually cured its condition of capital impairment through the cash infusion. By June 30, 2010, ELK‘s capital impairment percentage had risen to 43.5%, meaning that the modest cash infusion on August 4, 2010 was insufficient to cure ELK‘s condition of capital impairment.23 A.R. 199, 1762. Indeed, ELK acknowledged that its capital impairment percentage exceeded the maximum allowable threshold as of both June 30, 2010 and September 30, 2010. A.R. 139, 156.
No doubt seeing the writing on the wall, ELK counters that the cash infusion constituted an adequate cure because the SBA never told it otherwise. See Aff. of Michael Feinsod (“Feinsod Decl.“),24 ECF No. [3-3], ¶ 7. Even while making this claim, ELK acknowledges that the “obverse is equally true,” Pl.‘s Reply at 7—that is, that the SBA never informed ELK that the cash infusion did constitute a satisfactory cure. But even absent this acknowledgment, the Court rejects ELK‘s theory of acquiescence by silence. Whereas the applicable regulations may require the SBA to provide SBICs with written notice of a condition of capital impairment, and whereas the SBA‘s standard operating procedures may identify a preference for affording SBICs advance notice of a transfer to the Office of SBIC Liquidation, there is nothing to suggest that the SBA is somehow obligated to provide an SBIC with notice as to the suitability of an attempted cure, let alone in a particular form or at a particular time.
ELK‘s arguments, however, do not stop there. Even while acknowledging that the SBA never actually notified it that the cash infusion was an adequate cure, ELK relies upon a series of vague and unilluminating statements, plucked entirely out of context, in an attempt to insinuate that the SBA believed or told ELK that the company had cured its condition of capital impairment. At this procedural posture, the Court finds ELK‘s arguments, which are three-fold, wholly unpersuasive.
First, ELK proffers the statement from its declarant that, during a meeting between the SBA and ELK‘s representatives on October 19, 2010, “[i]t was acknowl-edged ... that the Capital Impairment issue raised by the SBA had been resolved.” Feinsod Decl. ¶ 9. Such a vague and ambiguous statement is hardly probative of anything, especially when it contradicts everything in the record and stands in considerable tension with ELK‘s own representations to this Court. In its Opposition, the SBA rightly faults ELK for failing to “state who made that acknowledgment or in what manner it was made.” Def.‘s Opp‘n at 29. ELK purports to remedy this patent defect in its Reply by submitting a supplemental declaration from its declarant, see Second Supplemental Aff. of Michael Feinsod (“Second Suppl. Feinsod Decl.“),25 ECF No. [22-3], but ELK never sought this Court‘s leave to file its supplemental declaration and therefore it shall not be considered. See LCVR 65.1(c) (“Supplemental affidavits either to the application or opposition may be filed only with permission of the court.“). Moreover, even if the Court were inclined to consider the declaration, ELK claims that it “explain[s] that the statement was made by [the relevant Area Chief for the Office of SBIC Operations], and that the parties also discussed the need for ELK to raise regulatory capital,” Pl.‘s Reply at 8 (“Second Suppl. Feinsod Decl.“) ¶ 4, but the cited paragraph has nothing to do with the October 19, 2010 meeting, see Second Suppl. Feinsod Decl. ¶ 4. ELK has failed to furnish a “precise” citation to the portion of the record upon which it relies, Scheduling & Procedures Order ¶ 4(c), and the Court declines to sift through the record to ascertain whether there is other evidence supporting or contradicting ELK‘s contention. Despite these infirmities, the Court pauses to observe that, in his supplemental declaration, ELK‘s declarant merely denies that he was told that the capital infusion did not constitute an adequate cure. See Second Suppl. Feinsod Decl. ¶ 5. He does not affirmatively state that anyone from the SBA said the obverse—that is, that the capital infusion did constitute an adequate cure, let alone under circumstances that would allow this Court to conclude that any such statement could be construed as tantamount to a formal agency determination.
Second, ELK relies upon an e-mail circulated internally within the SBA that informally outlines a chronology of events relevant to ELK, claiming that the document shows that the SBA believed that ELK had cured its condition of capital impairment. A.R. 1762. However, even ELK characterizes the document as “after-the-fact” and argues that it should be disregarded altogether on that basis. Pl.‘s Reply at 7. Regardless, the statement cannot bear the weight put on it by ELK. At best, the cursory statement, made without any explanation, suggests that a member of the Office of SBIC Operations thought that, even crediting ELK‘s position that its capital impairment percentage “would drop from 40.1% to 39.9%” with a capital infusion, such a transaction would not be a “sustainable” fix for the company‘s problems. A.R. 1762. The statement is not the equivalent of a formal agency determination that the cash infusion cured ELK‘s ongoing condition of capital impairment.
Third, in a footnote unaccompanied by factual or legal argument, ELK contends that a solitary entry from a spreadsheet entitled “Regulatory Findings” evidences that “the SBA considered that ELK had resolved [its condition of capital] impairment as of January 19, 2011.” Pl.‘s Reply at 7 n.7. Courts need not consider cursory arguments of this kind, and the Court declines to do so here. Cf. Hutchins v. District of Columbia, 188 F.3d 531, 539 n. 3 (D.C.Cir.1999) (en banc). However, even if the Court were inclined to reach the merits of ELK‘s argument, ELK‘s interpretation of the spreadsheet is, to put it generously, disingenuous. The referenced entry provides:
| Report Date | Regulation | Regulation Description | Status |
|---|---|---|---|
| 1/6/2011 | 107.1830(e) | Capital Impairment | Violation Resolved on 1/19/2011 |
A.R. 2568. As ELK is almost certainly aware, the regulation referenced in the spreadsheet entry describes ELK‘s duty to “notify SBA promptly if [it is] capitally impaired.”
As a final matter, ELK contends that the SBA acted improperly because it “never threatened” ELK with a possible transfer to the Office of SBIC Liquidation between the time it issued the Cure Letter on July 20, 2010, and the time of the actual transfer on February 23, 2012. Pl.‘s Reply at 2. In other words, ELK faults the SBA for failing to provide ELK with advance notice of the transfer decision. Although not cited by ELK, the SBA‘s standard operating procedures do suggest that SBICs should be provided with advance notices of a possible transfer to the Office of SBIC Liquidation in most, but not necessarily all, cases. See SOP 10 06, ch. 9 para. 4. But ELK does not even endeavor to explain why the SBA was obligated to provide advance notice in this case. Regardless, even assuming, for the sake of argument, that the SBA was somehow required to provide ELK with advance notice of the possible transfer, the record is unequivocal that the SBA in fact did so. See A.R. 800, 1741. At this procedural posture, the record belies ELK‘s contention that the SBA “clandestinely” transferred the company to the Office of SBIC Liquidation without prior notice. Pl.‘s Reply at 5.
In the final analysis, ELK was provided with “written notice” of its condition of capital impairment and “at least 15 days to cure.”
ii. Substantive Compliance
After affording an SBIC an opportunity to cure, and before transferring the SBIC to the Office of SBIC Liquidation, the SBA must find that the SBIC “cannot or [has] not cure[d]” its condition of capital impairment. SOP 10 07, ch. 9 para. 2. In this regard, the record is clear: despite being afforded more than one year and seven months to right the ship, well beyond the fifteen-day minimum cure period, ELK continued to have a condition of capital impairment when the SBA decided to transfer the company to the Office of SBIC Liquidation. Indeed, ELK‘s financial condition had only further deteriorated over time, such that the company‘s capital impairment percentage, marginal at first, had ballooned to approximately 59% at the time of the SBA‘s transfer decision. A.R. 1580. ELK offers no meaningful challenge to the SBA‘s substantive determination that ELK neither had, nor realistically could, cure its condition of capital impairment. Determining whether an SBIC has cured, or can cure, a condition of capital impairment requires the exercise of administrative expertise, and the Court shall not lightly second guess the SBA‘s business determination. Federal courts are ill-equipped to tread into these waters. In this case, the SBA‘s determination is amply supported by the record. On this record, the Court finds that ELK has failed to establish that it is likely to show that the SBA‘s decision to transfer the company to the Office of SBIC Liquidation was somehow substantively defective.
At bottom, ELK concedes, as it must, that “[i]f an SBIC becomes capitally impaired, the SBA has the authority under the regulatory scheme to demand that the SBIC come into compliance,” and that “[i]f the SBIC is unable to comply within a reasonable time, the SBA has the authority to refer the matter to the Office of Liquidation.” Pl.‘s Mem. at 4. When it comes down to it, the record in this case shows that ELK had a continuing and worsening condition of capital impairment and, despite having more than one year and seven months to do so, failed to satisfactorily cure that condition. There is, quite simply, no credible argument that the SBA‘s decision to transfer ELK to the Office of SBIC Liquidation was procedurally or substantively defective. Accordingly, the Court finds that ELK has failed to establish that it is likely to succeed on the merits of its claim that the SBA‘s decision to transfer ELK to the Office of SBIC Liquidation on February 22, 2012 was arbitrary, capricious, or otherwise improper.
2. The Second Cure Letter and the SBA‘s March 13, 2012 Letter
ELK next challenges the reasonableness of the SBA‘s Second Cure Letter, dated March 6, 2012, and the conditions purportedly placed on the Second Cure Letter by the SBA‘s letter dated March 13, 2012. ELK‘s arguments in this regard need not detain the Court long, and the Court addresses them here seriatim.
First, ELK suggests that the SBA‘s Second Cure Letter failed to afford the company a “commercially reasonable” opportunity to cure. As an initial matter, the Court notes that there is no basis, in statute or regulation, for imposing upon the SBA a requirement that it afford SBICs a “commercially reasonable” opportunity to cure. Rather, the SBA is only required by regulation to provide an SBIC with “at least 15 days to cure the default(s).”
Second, ELK claims that the Second Cure Letter should have preceded its transfer to the Office of SBIC Liquidation and the SBA‘s purchase of ELK‘s debentures from the pooling institution. This argument fails at the outset because it presupposes that ELK‘s initial transfer to the Office of SBIC Liquidation was improper, but the Court has already concluded that ELK has failed to show that it is likely to succeed on such a claim. See supra Part V.A.1. The SBA is only required to provide an SBIC with “written notice” of its condition of capital impairment and to afford the SBIC “at least 15 days to cure the default(s),”
Third, and in a similar vein, ELK contends that the SBA‘s conduct—transferring ELK to the Office of SBIC Liquidation and purchasing ELK‘s debentures from the pooling institution—rendered ELK‘s ability to cure “illusory.” Pl.‘s Reply at 14. According to ELK, under these circumstances, “no investor would invest in ELK” and “no borrower will borrow from ELK.” Id. at 22. Once again, ELK‘s argument fails at the outset because it rests on the false premise that the initial transfer to the Office of SBIC Liquidation was improper. See supra Part V.A.1. More to the point, despite ELK‘s apparent belief to the contrary, the SBA is not required to create the conditions for an SBIC‘s ability to cure an event of default. Faced with ELK‘s threats of litigation, the SBA voluntarily agreed to refrain from further liquidation activities and it issued the Second Cure Letter to generously afford ELK yet another opportunity to cure its condition of capital impairment (an opportunity to which ELK would not have been entitled absent the SBA‘s voluntary agreement). In so doing, the SBA was not obligated to take any affirmative measures that might assist ELK in securing the private capital the company needed to cure its condition of capital impairment.26
Fourth, ELK argues most forcefully that the SBA‘s March 13, 2012 letter “sets at least five legally impermissible conditions to cure.” Pl.‘s Mem. at 23. De-spite ELK‘s fervent protestations to the contrary, the SBA‘s March 13, 2012 letter did no such thing, but instead merely provided ELK with preliminary feedback on the company‘s plan to deliver binding commitment letters to the SBA for its consideration. The SBA‘s letter unambiguously provided that, “[a]t this time, SBA cannot determine whether [the company‘s] proposed cure [would] satisfactorily resolve [its] condition of Capital Impairment.” A.R. 1833. Although the SBA provided ELK with some guidance as to its stated plan, the SBA clearly stated that it could not, at that time, render a final decision, and instructed ELK to submit additional information, including the fully executed binding commitment letters and an updated capital certificate. A.R. 1833. As a consequence, the SBA‘s March 13, 2012 letter simply does not constitute “final agency action” subject to judicial review.
In the end, ELK has failed to proffer a colorable basis for concluding that either the SBA‘s Second Cure Letter or its letter dated March 13, 2012 were arbitrary, capricious, or otherwise improper. Accordingly, the Court finds that ELK has failed to establish that it is likely to succeed on the merits of this claim.
*
*
*
In meeting the requisite burden for injunctive relief, “[i]t is particularly important for the movant to demonstrate a likelihood of success on the merits.” Konarski v. Donovan, 763 F.Supp.2d 128, 132 (D.D.C.2011). In the final analysis, ELK has failed to meet that burden here. As a result, this factor weighs against the issuance of a preliminary injunction.
B. Irreparable Injury, the Public Interest, and the Balance of the Equities
ELK bears the burden of “demonstrat[ing] that irreparable injury is likely in the absence of an injunction,” and not a mere possibility. Winter, 555 U.S. at 22 (emphasis in original). The injury identified must “be both certain and great; it must be actual and not theoretical.” Wisconsin Gas Co. v. Fed. Energy Regulatory Comm‘n, 758 F.2d 669, 674 (D.C.Cir.1985). In this regard, ELK offers various reasons why it believes that it will be injured in the absence of a preliminary injunction, but there is a common defect affecting them all.27 Regardless of what one might believe about the propriety of suspending liquidation activities during the pendency of this action, about enjoining the SBA from taking any action that would affect ELK‘s status a corporate licensee, or about requiring the SBA to provide ELK even more time to cure its condition of capital impairment, the simple fact is that ELK still has not presented the SBA or this Court with a concrete plan for curing its condition of capital impairment. True, ELK suggests that it intends to take the time afforded by a preliminary injunction to seek commitment letters reflecting sufficient funds to bring its capital impairment percentage to 40% or lower, but it offers no credible explanation why it would be able to successfully do so if afforded additional time when it has not been able to do so to date. To the extent ELK‘s optimism rests on its suggestion that the Court should take the unusual step of commanding the SBA to issue a public statement that the SBA will not accelerate ELK‘s payment on its debentures, ELK offers only its naked speculation that such a step would be sufficient to restore market confidence so that ELK could secure the funding it needs to cure.28 This is especially troubling because the record is clear that ELK‘s overall financial condition has consistently eroded over the past two years—something that is certain to be a major factor in shaping market perception. ELK simply has failed to explain to this Court‘s satisfaction that the “extraordinary relief” that it has requested would even make a meaningful difference at the end of the day. Winter, 555 U.S. at 21, 129 S.Ct. 365.
Turning to the categories of alleged harms identified by ELK, with one exception discussed in greater detail below, the Court is not persuaded that ELK is likely to suffer irreparable injury in the absence of preliminary relief. First, ELK asserts that the SBA‘s conduct is violative of its procedural rights, but courts generally “will not base a finding of ‘irreparable injury’ on a procedural violation standing alone” and “any putative procedural violation ... [could] be remedied by a decision on the merits.” Am. Ass‘n for Homecare v. Leavitt, 2008 WL 2580217, at *5 (D.D.C. June 30, 2008) (internal numbering omitted). Second, ELK claims that it will suffer injury to its goodwill, market reputation, and creditworthiness, but even assuming, arguendo, that such harms are cognizable under the “irreparable injury” standard, their immediate impact has already been felt and hence “a preliminary injunction here would be very much like locking the barn door after the horse is gone.” Marcy Playground, Inc. v. Capitol Records, Inc., 6 F.Supp.2d 277, 282 (S.D.N.Y.1998). Again, ELK has not provided a non-speculative basis for concluding that the issuance of a preliminary injunction is likely to meaningfully improve its perception in the marketplace. Third, although ELK correctly observes that it may be required to comply with the requirements applicable to new licensees if it is able to secure a transfer back to the Office of SBIC Operations and thereby exit liquidation, see SOP 10 06, ch. 9 para. 6, whether or not ELK will ever be able to meet the other conditions for exiting liquidation remains entirely speculative at this point.
Nonetheless, the Court is not oblivious to the fact that there are real consequences stemming from ELK‘s transfer to the Office of SBIC Liquidation. It should go without saying that a transfer to the Office of SBIC Liquidation necessarily brings with it a greater risk of actual liquidation, something that would obviously affect ELK‘s ability to exist in its current form as an ongoing concern. Once the parties’ standstill agreement expires after April 25, 2012, the SBA will be free to continue the process of liquidation, which may include accelerating ELK‘s payment on its debentures by declaring the company‘s entire indebtedness “immediately due and payable,”
Even accepting this showing, however, the Court finds that the irreparable harm ELK might suffer in the absence of a preliminary injunction is outweighed by the public interest. Today, the SBA holds approximately $21,715,000 of outstanding debentures that were issued by ELK between July 2002 and December 2009, and approximately $5,000,000 will be due within the next ten months. A.R. 14, 1720. These are substantial figures, and they represent public monies that have been extended to ELK, a private entity, with the ultimate aim not of encouraging ELK‘s individual growth but rather the growth of small businesses generally.29 The primary goal of the Office of SBIC Liquidation is to maximize net recoveries in liquidation, taking into consideration the time value of money, and furthering the integrity of the SBIC program while recognizing the interests of affected parties. See SOP 10 07, ch. 1 para. 4(a). Permitting an SBIC like ELK to delay the liquidation process during the pendency of litigation would constitute a significant interference with the SBA‘s ability to protect its leverage position and to recover public funds from failing institutions. Such an outcome would, if not eviscerate, then at the very least severely undermine the SBA‘s ability to function as a market actor and make the sort of adroit business decisions that Congress envisioned when it launched the agency into the commercial world. The equities do not favor such an outcome where, as here, an SBIC has already been afforded a meaningful opportunity to cure its default and has failed to do so or even show that there is a realistic possibility that it will be able to do so. Accordingly, even taking into account the harm ELK might suffer in the absence of a preliminary injunction, the Court finds that the public interest and the balance of the equities weigh against the issuance of a preliminary injunction.
VI. CONCLUSION
The Court has considered the remaining arguments tendered by ELK and has concluded that they are without merit. Considering the record as a whole, the Court finds that ELK has failed to make a “clear showing” that it is entitled to the “extraordinary remedy” of a preliminary injunction. Winter, 555 U.S. at 21, 129 S.Ct. 365. Accordingly, ELK‘s [3] Motion for Preliminary Relief shall be DENIED. The SBA shall file a pleading responsive to ELK‘s [1] Complaint by no later than June 4, 2012. An appropriate Order accompanies this Memorandum Opinion.