United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta, United States District Judge.
second time in as many months, Plaintiffs 12 Percent
Logistics, Inc., and the Small Business in Transportation
Coalition seek a temporary restraining order and a
preliminary injunction that would compel Defendants Unified
Carrier Registration Plan Board ("UCR Board"), and
the Indiana Department of Revenue and its Commissioner, Adam
Krupp (collectively, "INDOR"), to allow motor
carriers, brokers, and freight forwarders to register under
the Unified Carrier Registration program for the 2018
calendar year. Plaintiffs also seek, once again, to enjoin
the UCR Board from future violations of the Sunshine Act.
current motion differs from their initial one in a few
respects. In the first round, Plaintiffs alleged that the UCR
Board had violated the Sunshine Act by failing to give
adequate notice of the UCR Board's September 14, 2017,
meeting at which the Board decided to postpone the ordinary
start of the registration period-October 1, 2017-and
requested that the court undo the Board's decision
because of that violation. See 12 Percent Logistics, Inc.
v. Unified Registration Plan Bd., No. 17-cv-02000, 2017
WL 4736709 (D.D.C. Oct. 18, 2017), at *1. The court denied
Plaintiffs' motion on the ground that the Sunshine Act
did not allow the court to grant Plaintiffs the relief
requested against the UCR Board and that, as to INDOR,
Plaintiffs had not established they were likely to succeed in
establishing the court's ability to exercise personal
jurisdiction as to it. See Id. at *6-7. The court
also found that Plaintiffs had failed to demonstrate
irreparable harm. See Id. at *8. In addition, the
court denied Plaintiffs' tandem request to enjoin the
Board from future Sunshine Act violations, reasoning that
such an order was not warranted in light of the sole
statutory violation Plaintiffs had identified-the UCR
Board's failure to give notice, publicly and in the
Federal Register, of the September meeting. Id. at
*5. The court, however, as a more limited remedy, ordered the
UCR Board to disclose immediately its draft minutes and any
recordings of the unnoticed meeting. Id.
second round, Plaintiffs offer a new legal theory on which to
reverse the Board's postponement of the registration
period. Plaintiffs now contend that the Unified Carrier
Registration Act of 2005, 49 U.S.C. § 14504a, which
created the UCR Board, grants Plaintiff an implied private
right of action to enforce the terms of the Unified Carrier
Registration Agreement ("UCR Agreement"), which is
the interstate compact that the UCR Board implements.
According to Plaintiffs, the Unified Carrier Registration Act
allows them to bring suit to compel the UCR Board to open up
the presently closed renewal period, which under the UCR
Agreement was to have commenced on October 1, 2017. That
avenue of redress, Plaintiffs contend, likewise extends to
INDOR, which acts as the UCR Board's agent with respect
to receiving registrations and collecting fees.
Plaintiffs allege a slew of new Sunshine Act violations by
the UCR Board, over its 11-year lifespan. Based on these
collected violations, Plaintiffs renew their request for the
court to enjoin the UCR Board from future violations of the
injunctive relief, of the kind requested here, is an
"extraordinary and drastic remedy" that is
"never awarded as [a matter] of right." Munaf
v. Geren, 553 U.S. 674, 689-90 (2008) (citations and
internal quotation marks omitted). A court may only grant the
"extraordinary remedy . . . upon a clear showing that
the plaintiff is entitled to such relief." Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)
(citing Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (per curiam)). Specifically, a plaintiff must show
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
equities tips in [its] favor"; and (4) "an
injunction is in the public interest." Winter,
555 U.S. at 20 (citations omitted).
in this Circuit traditionally have evaluated these four
factors on a "sliding scale"-if a "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." Davis v. Pension Benefit Guar.
Corp, 571 F.3d 1288, 1291-92 (D.C. Cir. 2009).
Winter, however, called that approach into doubt and
sparked disagreement over whether the "sliding
scale" framework continues to apply, or whether a movant
must make a positive showing on all four factors without
discounting the importance of a factor simply because one or
more other factors have been convincingly established.
Compare Davis v. Billington, 76 F.Supp.3d 59, 63 n.5
(D.D.C. 2014) ("[B]ecause it remains the law of this
Circuit, the Court must employ the sliding-scale analysis
here."), with ABA, Inc. v. Dist. of Columbia,
40 F.Supp.3d 153, 165 (D.D.C. 2014) ("The D.C. Circuit
has interpreted Winter to require a positive showing
on all four preliminary injunction factors." (citing
Davis v. Pension Benefit Guar. Corp., 571 F.3d at
1296 (Kavanaugh, J., concurring))).
of whether the sliding scale framework applies, it remains
clear that a movant must demonstrate irreparable harm, which
has "always" been "[t]he basis of injunctive
relief in the federal courts." Sampson v.
Murray, 415 U.S. 61, 88 (1974) (quoting Beacon
Theatres, Inc. v. Westover, 359 U.S. 500, 506-07
(1959)); see also Younger v. Harris, 401 U.S. 37, 46
(1971) (noting that irreparable injury is "the
traditional prerequisite to obtaining an injunction").
"A movant's failure to show any irreparable harm is
therefore grounds for refusing to issue a preliminary
injunction, even if the other three factors entering the
calculus merit such relief." Chaplaincy of Full
Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir.
2006). Indeed, if a court concludes that a movant has not
demonstrated irreparable harm, it need not even consider the
remaining factors. See City Fed Fin. Corp. v. Office of
Thrift Supervision, 58 F.3d738, 747 (D.C. Cir. 1995).
number of principles apply when evaluating whether an alleged
harm is "irreparable." First, "the injury must
be both certain and great; it must be actual and not
theoretical." Wise. Gas Co. v. FERC, 758 F.2d
669, 674 (D.C. Cir. 1985). The party seeking relief must show
that the complained-of injury is of such imminence that there
is a clear and present need for equitable relief.
Id. Second, the movant must "substantiate the
claim that irreparable injury is 'likely' to
occur." Id. (citation omitted). That means a
party cannot rely on bare allegations of harm, but instead
must come forward with "proof that the harm has occurred
in the past and is likely to occur again, or proof indicating
that the harm is certain to occur in the near future."
Id. Third, the moving party must establish
causation. That is, it "must show that the alleged harm
will directly result from the action which the movant seeks
to enjoin." Id.
court finds that injunctive relief is not warranted as to
either of Plaintiffs' claims because Plaintiff has failed
to show irreparable harm. For that reason, the court need not
consider any of the other factors. See City Fed Fin.
Corp., 58 F.3d at 747; Satakiv. Broad. Bd. of
Governors, 733 F.Supp.2d 22, 48 (D.D.C. 2010).
regard to its claim under the Unified Carrier Registration
Act, 49 U.S.C. § 14504a, Plaintiffs have proffered harm
that is, at best, theoretical. Plaintiffs maintain that,
absent injunctive relief, starting in 2018, carriers
nationwide face the prospect of state-imposed criminal or
civil penalties for failing to possess a valid and current
registration. Pis.' Second Mot. for Prelim. Inj., ECF No.
36, Pis.' Mem. in Support, ECF No. 36-1 [hereinafter
Pis.' Mem.], at 14-15; Pis.' Resp., ECF No. 41, at 6.
Plaintiffs, however, cite no case for the proposition that
the mere possibility of some future enforcement action,
particularly for a violation that has yet to occur, can
constitute irreparable harm. Indeed, the weight of the law is
to the contrary. See generally Jarkesy v. SEC, 803
F.3d 9, 25-27 (D.C. Cir. 2015); see also John Doe Co. v.
Consumer Fin. Prot. Bureau,235 F.Supp.3d 194, 203
(D.D.C. 2017) (holding that "neither potential
investigation by the [agency] nor the bringing of an
enforcement action present irreparable injuries that the
Court is willing to enjoin"). As the Supreme Court
observed in FTC v. Standard Oil Co.: "The
expense and annoyance of litigation is part of the social
burden of living under government, " ...