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Inc. v. Unified Carrier Registration Plan Board

United States District Court, District of Columbia

December 1, 2017

12 PERCENT LOGISTICS, INC., et al., Plaintiffs,
v.
UNIFIED CARRIER REGISTRATION PLAN BOARD, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta, United States District Judge.

         For the 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.

         Plaintiffs' 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.

         In this 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.

         Additionally, 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 Sunshine Act.

         I

         Preliminary 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).

         Courts 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))).

         Regardless 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).

         A 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.

         II

         The 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).

         A.

         With 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, " ...


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