                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA
_________________________________________
                                         )
12 PERCENT LOGISTICS, INC., et al.,      )
                                         )
      Plaintiffs,                        )
                                         )
              v.                         ) Case No. 17-cv-02000 (APM)
                                         )
UNIFIED CARRIER REGISTRATION             )
PLAN BOARD, et al.,                      )
                                         )
      Defendants.                        )
_________________________________________)

                         MEMORANDUM OPINION AND ORDER

       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.




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                                                   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))).




                                                   3
        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 CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 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.” Wisc. 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



                                                   4
any of the other factors. See CityFed Fin. Corp., 58 F.3d at 747; Sataki v. 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. Pls.’ Second Mot. for Prelim. Inj.,

ECF No. 36, Pls.’ Mem. in Support, ECF No. 36-1 [hereinafter Pls.’ Mem.], at 14–15; Pls.’ 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,” and although the

prospect of having to defend oneself in an adjudicatory proceeding is undoubtedly burdensome, it

does not rise to the level of irreparable harm. 449 U.S. 232, 244 (1980) (citation and internal

quotation marks omitted). Plaintiff’s asserted harm therefore is insufficient as a matter of law.

        Furthermore, as a practical matter, the court is skeptical that states will crack down on

vehicle operators who, starting on January 1, 2018, do not have current registrations. After all,

41 states participate in the UCR Agreement and surely are aware of the UCR Board’s decision to

postpone the start of the registration period. Indeed, the Board voted to recommend that states not



                                                   5
enforce registration requirements until 90 days after the 2018 the registration period commences.

First Am. Verified Compl., ECF No. 35 [hereinafter Am. Compl.], ¶ 38. Plaintiffs have offered

no reason to believe that those 41 states, or any other, will hold a vehicle operator accountable for

a stale registration when the UCR Board’s actions have prevented operators from timely

registering. And, even if a state or locality were to ignore the Board’s action, it is hard to fathom

that a state or local court would not find the unavailability of the registration system to be a

complete defense to any enforcement action. Of course, an operator who finds itself having to

defend against such an enforcement action will face a “substantial” burden, but not one sufficient

to constitute irreparable injury.         Standard Oil, 449 U.S. at 244. In short, Plaintiffs’ claimed

injury—that registrants will be held to account under state laws as of January 1, 2018, if they are

unable to register immediately—amounts to “something merely feared as liable to occur at some

indefinite time,” for which injunctive relief is not appropriate. Connecticut v. Massachusetts, 282

U.S. 660, 674 (1931). 1

                                                          B.

         Plaintiffs fare no better in their effort to show irreparable harm with respect to their claim

under the Sunshine Act. Plaintiffs assert that the UCR Board repeatedly has violated the Sunshine

Act in three ways: (1) by failing to make a proper public announcement before each board meeting;

(2) by failing to publish timely notice of board meetings in the Federal Register; and (3) by using

the same boilerplate text to describe the subject matter of board meetings in its Federal Register




1
 As they did in the first round, Plaintiffs also assert irreparable harm in the form of diminished safety on the roadways
arising from the non-distribution of registration fees to states because participating states are obligated to use those
fees for road safety initiatives. See Pls.’ Mem. at 15. But as before, that claimed injury is “not supported by any
evidence, only Plaintiffs’ speculation.” 12 Percent Logistics, Inc. v. Unified Registration Plan Bd., 2017 WL 4736709,
at *8.

                                                           6
notices. See Am. Compl. ¶¶ 52–56; see 5 U.S.C. §§ 552b(e)(1), (3). None of these alleged

violations, however, warrants the injunctive relief Plaintiffs seek.

       As to the claimed violation of the public announcement requirement, Plaintiffs—to their

credit—brought to the court’s attention a new website, www.ucrplan.org, which gives notice of

the UCR Board’s upcoming meetings and makes available the minutes of prior Board meetings.

At the hearing on this matter, Plaintiffs acknowledged that the meeting notices posted to the new

website satisfy the Sunshine Act’s public notice requirement. Hr’g Tr. (draft), 11/30/17, at 3–5.

Consequently, any prospect of harm flowing from a violation of that requirement is now

extinguished.

       The same is true with respect to the failure to timely publish notices in the Federal Register.

The Sunshine Act requires the Federal Register notice to contain the same information as the public

announcement. Compare 5 U.S.C. § 552b(e)(1), with id. § 552b(e)(3). Because the new website

provides the same information as will appear in the Federal Register notice, Plaintiffs cannot

possibly show that the lack of a timely publication in the Federal Register will cause them

irreparable harm.

       Finally, although the court is troubled by the Board’s repeated use of the same text to

describe the subject matter of upcoming meetings, Plaintiffs have not substantiated their claim of

irreparable injury with “proof that the harm has occurred in the past . . . or proof indicating that

the harm is certain to occur in the near future.” Wisconsin Gas, 758 F.2d at 674. Indeed, the only

evidence that Plaintiffs have presented—the First Amended Verified Complaint and the Second

Declaration of Kevin Rea, ECF No. 35-1—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. Plaintiffs contend that the



                                                  7
purpose of the subject matter disclosure—advising the public about the UCR Board’s upcoming

activities, thereby facilitating informed decisions about whether to attend or participate in

meetings—is contravened by the Board’s use of boilerplate in its notices. Pls.’ Mem. at 14; Hr’g

Tr. (draft), 11/30/17, at 10. Maybe so. But that claim of injury is simply a “[b]are allegation[ ] of

what is likely to occur,” which is of no value “since the court must decide whether the harm will

in fact occur.” Wisconsin Gas, 758 F.2d at 674. Absent “proof” of past or likely future harm

arising from the lack of information about the subject matter of meetings, the court cannot find

that these Plaintiffs will suffer irreparable harm from the UCR Board’s general failure to carry out

the purposes of the Sunshine Act.

       Accordingly, having failed to demonstrate that they will suffer irreparable harm in the

absence of injunctive relief, the court denies Plaintiffs’ motion.

                                                  III

       Before concluding, the court addresses an argument that Plaintiffs advance only as to

INDOR. INDOR has now twice declined to oppose Plaintiffs’ motions for injunctive relief.

See Notice of No Response, ECF No. 26; Notice of No Response, ECF No. 39. Plaintiffs therefore

ask the court to treat their motion as conceded as to INDOR and enter the requested injunction

against it, even if the court declines to do so against the UCR Board. See Pls.’ Reply, ECF No.

42, 1–2. Such an injunction would force INDOR, an agent of the UCR Board, to immediately

open up registration through its website. Id. at 2–3.

       Plaintiffs are right that, under this District Court’s Local Civil Rules, if a non-movant fails

to file a timely opposition to a motion, “the Court may treat the motion as conceded.” LCvR 7(b)

(emphasis added). The key word in that rule of course is “may,” which gives the court discretion

whether to treat an unopposed motion as conceded. Here, the court declines to do so. Treating



                                                  8
Plaintiffs’ motion as conceded and granting injunctive relief as to INDOR would be tantamount to

doing an end-run around the UCR Board, which has consistently opposed Plaintiffs’ efforts to

secure injunctive relief. The court will not allow one defendant’s non-response to be used to the

detriment of a responsive party.

                                                IV

       For the foregoing reasons, the court denies Plaintiffs’ Second Motion for Temporary

Restraining Order and Preliminary Injunction.




Dated: December 1, 2017                              Amit P. Mehta
                                                     United States District Judge




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