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Inc. v. Unified Carrier Registration Plan Board

United States District Court, District of Columbia

January 29, 2018

12 PERCENT LOGISTICS, INC., et al., Plaintiffs,


          Amit P Mehta United States District Judge.

         Plaintiffs 12 Percent Logistics, Inc., and the Small Business in Transportation Coalition are back once more seeking an injunction against Defendant Unified Carrier Registration Plan Board (“UCR Plan Board”). This time Plaintiffs ask for an order “enjoin[ing] the UCR Plan Board to comply with the Sunshine Act and properly notice all future UCR Plan Board meetings and subcommittee meetings, ” pending Plaintiffs' appeal from the court's denial of their second and third requests for injunctive relief.[1] Pls.' Second Mot. for Inj. Pending Appeal, ECF No. 53 [hereinafter Pls.' Second Mot.]. The court denied Plaintiffs' earlier motions because Plaintiffs had failed to carry their burden of proving irreparable harm. Their present request, however, stands on different footing. The Unified Carrier Registration Act expressly makes “[m]eetings of the board and any subcommittees or task forces” “subject to the provisions” of the Sunshine Act. See 49 U.S.C. § 14504a(d)(4)(D) (emphasis added). Yet, the uncontested evidence presented by Plaintiffs shows that in the past the Board has noticed, at most, one subcommittee meeting in accordance with the Sunshine Act's commands. Indeed, as discussed below, the Board appears to believe- wrongly-that its subcommittee meetings fall outside the Act's purview. The Board therefore is likely to continue holding subcommittee meetings without providing the legally required notice to the public. The harm the follows from that practice is both obvious and certain: Plaintiffs cannot exercise their statutory right to attend and participate in subcommittee meetings that they do not know about. Accordingly, to prevent such harm, the court will enter a limited injunction that requires the Board, during the pendency of appeal, to comply with the Sunshine Act's notice requirements before it convenes a subcommittee meeting. The court, however, denies Plaintiffs' request for an injunction pending appeal as to the Board's full meetings, as Plaintiffs continue to fail to establish irreparable harm as to those alleged Sunshine Act violations.

         For the reasons that follow, the court grants in part and denies in part Plaintiffs' Second Motion for Injunction Pending Appeal.[2]


         The court starts with a brief overview of what has transpired in this case to date.[3] On September 27, 2017, Plaintiffs filed their Complaint, Compl., ECF No. 1, along with their first motion for temporary restraining order and preliminary injunction, Pls.' Mot. for TRO & Prelim. Inj., ECF No. 2. As is relevant here, Plaintiffs asserted that the UCR Board had violated the Sunshine Act by failing to give adequate notice of its September 14, 2017, meeting, at which the Board decided to postpone the start of the annual period for interstate carrier registrations to an unspecified date after October 1, 2017. As a remedy for the alleged Sunshine Act violation, Plaintiffs asked the court to undo the Board's action. See Pls.' Mot for TRO & Prelim. Inj., Mem. in Support, ECF No. 2-1, at 1-2. The court denied Plaintiffs' motion for injunctive relief on the grounds that: (1) the Sunshine Act did not authorize invalidating the agency's action; and (2) Plaintiffs had failed to demonstrate irreparable harm. See 12 Percent Logistics, Inc. v. Unified Registration Plan Bd., No. 17-cv-02000, 2017 WL 4736709, at *6-8 (D.D.C. Oct. 18, 2017) [hereinafter 12 Percent I]. The court also declined to enjoin the Board from future Sunshine Act violations because Plaintiffs had identified only one such violation. See Id. As a limited remedy, however, and as permitted under the Sunshine Act, the court ordered the UCR Board to immediately disclose its draft minutes and any recordings of the unnoticed September 14th meeting. Id.

         Plaintiffs then filed an Amended Complaint and, on November 17, 2017, sought injunctive relief for a second time. See 12 Percent Logistics, Inc. v. Unified Registration Plan Bd., No. 17-cv-02000, 2017 WL 5990123, at *1 (D.D.C. Dec. 1, 2017) [hereinafter 12 Percent II]. In this iteration, Plaintiffs offered evidence that the Board historically had failed to publish timely notices of full Board meetings in the Federal Register and had consistently used boilerplate language to describe the subject matter of upcoming Board meetings. See Id. at *4. The court nevertheless denied injunctive relief on the ground that Plaintiffs had failed to show irreparable harm. See Id. The court reasoned that, notwithstanding these alleged historical violations, Plaintiffs were unlikely to suffer imminent harm from a future Sunshine Act violation because the UCR Board had created a website that gives public notice of upcoming Board meetings, thereby enabling Plaintiffs to learn about and participate in those meetings. Id. Additionally, to the extent the Board had failed to disclose with specificity the subject matter of upcoming meetings, the court held that Plaintiffs had not presented actual proof of harm to warrant injunctive relief. See Id. (noting that Plaintiffs' Amended Complaint “is silent as to any past harm Plaintiffs have suffered as a result of the boilerplate text or any future harm that they are likely to suffer in advance of upcoming meetings if the Board continues to use boilerplate text”).

         Not satisfied with the court's decisions, Plaintiffs made yet a third attempt at securing injunctive relief. See Order, ECF No. 47. On December 12, 2017, Plaintiffs complained that the UCR Board had not adhered to the Sunshine Act's notice requirements with respect to Board and subcommittee meetings scheduled for two days later, December 14, 2017. See Id. at 1. Plaintiffs also presented evidence that the Board historically had not publicly noticed subcommittee meetings. Pls.' Third Mot. for TRO & Prelim. Inj., ECF No. 46, Mem. in Support, ECF No. 46-1, at 7. On December 13, 2017, the court rejected Plaintiffs' demand for injunctive relief yet again, finding that Plaintiffs had not established irreparable harm since they knew of the meetings being held the next day, and therefore, notwithstanding the alleged deficient notice, had “every opportunity to participate in them.” Order, ECF No. 47, at 1. Additionally, the court faulted Plaintiffs for their unexplained delay in seeking relief after learning of the Sunshine Act violation regarding the December 14, 2017, meeting, thereby undermining their assertion of irreparable harm. Id. at 2. Accordingly, the court denied injunctive relief for a third time.

         Plaintiffs then noticed an appeal from the court's second and third denials for injunctive relief. Notice of Appeal, ECF No. 48. Thereafter, they filed the present motion seeking an injunction pending appeal. See Pls.' Second Mot.


         Rule 62(c) of the Federal Rules of Civil Procedure authorizes a district court to issue an injunction pending appeal. Fed.R.Civ.P. 62(c). A motion brought under Rule 62(c) is subject to the same four criteria as a motion for preliminary injunction. See Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 842-43 (D.C. Cir. 1977). The moving party “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); accord Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985) (per curiam) (citing Holiday Tours, 559 F.2d at 843).

         Plaintiffs urge the court to employ the “sliding scale” approach to injunctive relief, whereby an injunction can be justified by a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable harm. See Pls.' Second Mot. at 22 (citing CityFed. Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)). But whether that approach survives the Supreme Court's decision in Winter “remains an open question” in the D.C. Circuit. Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014). Some D.C. Circuit judges have expressed the view that Winter supplants the “sliding scale” approach, and therefore a movant cannot obtain an injunction without showing “both a likelihood of success and a likelihood of irreparable harm.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (internal citations omitted). The Circuit has not, however, expressly disavowed adherence to the sliding scale approach. Thus, the unanswered question remains “whether the ‘likelihood of success' factor is ‘an independent, free-standing requirement, ' or whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a ‘serious legal question' on the merits.” Aamer, 742 F.3d at 1043 (quoting Sherley, 644 F.3d at 393, 398).

         The court here need not pick a side because under either approach the result is the same: Plaintiffs are entitled to partial injunctive relief.


         Heeding the D.C. Circuit's admonition that “[t]he law requires that courts closely tailor injunctions to the harm that they address, ” ALPO Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 972 (D.C. Cir. 1990), the court considers Plaintiffs' request for an injunction pending appeal in two parts. The court first addresses Plaintiffs' claim that the Board continues to violate the Sunshine Act's requirements as to ...

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