12 Percent Logistics, Inc. v. Unified Carrier Registration Plan Board ( 2019 )

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
I. INTRODUCTION
In 2005, Congress established Defendant Unified Carrier Registration (“UCR”) Plan
Board. The Board is tasked with administering the UCR Plan Agreement, an interstate compact
that governs the “collection and distribution of registration and financial responsibility information
provided and fees paid by motor carriers, motor private carriers, brokers, freight forwarders, and
leasing companies.” 49 U.S. Code § 14504a(a)(8). Defendant Indiana Department of Revenue
(“INDOR”) is a signatory of the Plan Agreement and, pursuant to various memorandums of
understanding with the Board, operates an on-line portal to register carriers and collect fees
nationwide.
Plaintiffs are UCR registrants, who brought this action on September 27, 2017. They assert
two claims. The first is rooted in the UCR enabling act, 49 U.S.C. § 14505a, and the UCR Plan
Agreement, both of which provide that the Board’s meetings and subcommittee meetings are
subject to the public notice requirements contained in the federal Sunshine Act. Plaintiffs claim
that, for years, the Board has violated the Sunshine Act by, among other things, failing to provide
timely notice of meetings and not divulging meaningful detail as to their subject matter. Plaintiffs’
second claim is predicated on another aspect of the UCR Plan Agreement. When Plaintiffs first
filed this action, the Agreement provided that the registration period for the next calendar year
would open on October 1st of the prior year. In 2017, the Board voted multiple times to delay the
start of the registration period beyond October 1, 2017. In their complaint, Plaintiffs asked the
court to compel the Board and INDOR to open the registration process immediately. The Board
finally opened registration in January 2018.
Plaintiffs request a declaratory judgment and permanent injunctive relief against the Board
for alleged violations of the Sunshine Act, and against the Board and INDOR for violating the
UCR Plan Agreement. During the course of these proceedings, Plaintiffs filed numerous requests
for injunctive relief. The court denied most of these requests, including Plaintiffs’ demand to open
the 2018 registration period. In January 2018, however, the court entered a limited injunction
requiring the Board’s subcommittee meetings to adhere to the Sunshine Act’s notice requirements.
The parties now submit cross-motions for summary judgment.
For the reasons stated below, the court grants Plaintiffs’ motion in part and Defendants’
motion in part. The court finds that the Board violated the Sunshine Act by making public only
boilerplate descriptions of the subject matter of all meetings and by failing to provide timely notice
of subcommittee meetings. With regard to other aspects of Plaintiffs’ Sunshine Act claim, and
their claim alleging a violation of the UCR Plan Agreement because of the delayed opening of the
2018 registration period, the court enters judgment in favor of Defendants.
2
II. BACKGROUND
A. Factual Background
The UCR Plan Agreement is an interstate compact whose purpose is to coordinate the
registration and collection of fees and information from motor carriers, motor private carriers,
brokers, freight forwarders, and leasing companies, whose commercial vehicles travel in interstate
commerce. See generally 49 U.S.C. § 14504a. The Plan is overseen by the UCR Plan Board, a
15-member commission created by an Act of Congress (“UCR Act”) and appointed by the
Secretary of Transportation. See 49 U.S.C. § 14504a(d)(1). The Board has several subcommittees
such as audit, dispute resolution, and industry, which hold their own meetings. 49 U.S.C.
§ 14504a(d)(5).
Forty-one states participate in the UCR Agreement. See Def. UCR Plan Board’s Cross
Mot. for Summ. J., ECF No. 93 [hereinafter UCR Def.’s Mot.]; UCR Def.’s Exhibits, ECF No. 93-
1 [hereinafter UCR Def.’s Exs.], at 2. 1 The State of Indiana is a member state. Under various
memorandums of understanding between the Indiana Department of Revenue (INDOR) and the
Board, INDOR registers carriers and collects UCR fees and information from registrants. Pls.’
Stmt. of Undisputed Facts, ECF No. 76 [hereinafter Pls.’ Facts], ¶¶ 4, 17; Def. INDOR’s Stmt. of
Undisputed Facts, ECF 94-1 [hereinafter INDOR Def.’s Facts], ¶ 1. Carriers register and pay UCR
fees annually. 49 U.S.C. § 14504a(d)(7), (f)(4), (h).
The Secretary of Transportation determines the annual UCR fee amounts charged to
carriers based on recommendations made by the Board. 49 U.S.C. § 14504a(d)(7)(B). When the
Board proposes changes to the annual rates, the Secretary must act within 90 days of receiving the
Board’s recommendations, a timeline that includes a period of notice and comment. Id. At the
1
The court uses CM/ECF-generated pagination when citing to the Board’s exhibits.
3
time Plaintiffs filed their Amended Complaint, the UCR Plan Agreement provided that the annual
registration period would begin on October 1. UCR Def.’s Exs. at 12 (UCR Agreement)
(“‘Renewal period’ means, with respect to a registration year, the period of October 1 through
December 31 of the immediately preceding year.”).
In March 2017, the Board voted to recommend a revised fee structure for 2018 and 2019
and forwarded the recommendations to the Secretary of the Treasury. Pls.’ Facts ¶ 39; UCR Def.’s
Stmt. of Undisputed Facts, ECF No. 93-2 [hereinafter UCR Def.’s Facts], ¶ 39. When the
Secretary did not act within 90 days, at a meeting held on September 14, 2017, the Board voted to
delay the start of the 2018 registration period until November 1, 2017. Pls.’ Facts ¶¶ 41, 43, 44;
UCR Def.’s Facts ¶¶ 41, 43, 44. Following continued inaction by the Secretary, at its next meeting
on October 26, 2017, the Board yet again voted to delay registration for 2018, this time “until
further notice.” Pls.’ Facts ¶¶ 47, 48; UCR Def.’s Facts ¶¶ 47, 48. The Board and INDOR
eventually opened the 2018 registration period on January 5, 2018. INDOR Stmt. of Facts ¶ 2;
Pls.’ Reply to UCR Def.’s Mot., ECF No. 97 [hereinafter Pls.’ Reply], at 12.
B. The Sunshine Act
Both the UCR Act and UCR Agreement require meetings of the Board and its
subcommittees to adhere to the public notice requirements of the Sunshine Act. See 49 U.S.C.
§ 14504a(d)(4)(D) (“Meetings of the board and any subcommittees . . . shall be subject to the
provisions of [the Sunshine Act].”); UCR Def.’s Exs. at 22 (UCR Agreement, ¶ 15(i)(5)). The
Sunshine Act provides that:
In the case of each meeting, the agency shall make public announcement, at least
one week before the meeting, of the time, place, and subject matter of the meeting,
whether it is to be open or closed to the public, and the name and phone number of
the official designated by the agency to respond to requests for information about
the meeting . . .
4
5 U.S.C. § 552b(e)(1). In addition, the Act further mandates that:
Immediately following each public announcement required by this subsection,
notice of the time, place, and subject matter of a meeting, whether the meeting is
open or closed, any change in one of the preceding, and the name and phone number
of the official designated by the agency to respond to requests for information about
the meeting, shall also be submitted for publication in the Federal Register.
Id. § 552b(e)(3). Plaintiffs contend that the Board and its subcommittees violated these provisions
by routinely failing (1) to make public announcements at least one week before meetings, (2) to
publish timely Federal Register notices, and (3) to disclose any meaningful description of the
subject matter to be discussed at meetings. See Am. Compl., ECF No. 35 [hereinafter Am.
Compl.], ¶¶ 23–31.
C. Procedural Background
Plaintiff 12 Percent Logistics, Inc. is a registrant that pays UCR fees through INDOR, and
Plaintiff Small Business in Transportation Coalition is a trade organization that includes members
who register and pay UCR fees through INDOR. Pls.’ Facts ¶¶ 1, 2. Plaintiffs filed their initial
complaint on September 27, 2017, against the Board and INDOR, 2 along with a motion for a
temporary restraining order and preliminary injunction. See Compl., ECF No. 1 [hereinafter First
Compl.]; Pls.’ Mot. for TRO & Prelim. Inj., ECF No. 2 [hereinafter Pl.s’ TRO Mot.]. Plaintiffs
alleged that (1) the Board and INDOR violated the UCR Plan Agreement by not opening the 2018
registration period on October 1, 2017, and (2) the Board violated the Sunshine Act by not
adequately noticing the September 2017 meeting at which the Board made that decision. See First
Compl. ¶¶ 37–45, 64–71; Pls.’ TRO Mot. 3 Plaintiffs demanded that the court undo the Board’s
2
Plaintiffs also named Adam Krupp, in his official capacity as Commissioner of INDOR, as a defendant. For ease of
reference, the court refers to INDOR and Krupp simply as INDOR.
3
Plaintiffs’ initial complaint also contained causes of action under the Administrative Procedure Act. See First Compl.
¶¶ 46–63. Plaintiffs later abandoned those claims.
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action and order the Board and INDOR to open the registration period immediately. See Pl.’s TRO
Mot. at 14. Although the court found that the Board’s public notice for the September 2017
meeting did not conform with the Sunshine Act’s requirements, it did not grant the requested
injunctive relief on the grounds that: (1) the Sunshine Act did not authorize invalidating the
Board’s action in that instance; and (2) Plaintiffs had failed to demonstrate irreparable harm.
See 12 Percent Logistics, Inc. v. Unified Registration Plan Bd., 282 F. Supp. 3d 190, 196–99, 202
(D.D.C. 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. at 199.
As a remedy for the single identified violation, the court ordered the Board to disclose its draft
minutes and any recordings of the September 2017 meeting. Id.
Plaintiffs then filed an Amended Complaint on November 3, 2017. See Am. Compl. The
primary difference from their initial complaint was that, in the second pleading, Plaintiffs
substantially expanded their Sunshine Act claim. Plaintiffs undertook a historical survey of nearly
125 Board meetings and asserted that the Board, for years, had routinely violated the Sunshine Act
in multiple ways, including failing to publicly announce meetings, giving untimely notice of
meetings in the Federal Register, and issuing boilerplate descriptions of anticipated business at
meetings. See Am. Compl. ¶¶ 23–27. Plaintiffs also renewed their claim against the Board and
INDOR under the UCR Agreement based on the still-delayed opening of the 2018 registration
period. See id. ¶¶ 28–40. As relief, Plaintiffs asked the court to (1) declare that the Board had
violated the Sunshine Act, the UCR Act, and the UCR Plan Agreement by failing to give adequate
public notice of its meetings; (2) declare invalid and set aside the Board’s actions taken at the
September 14, 2017, and October 26, 2017, meetings, including delaying the start of the 2018
registration period; (3) order the Board to take “appropriate remedial action” for Sunshine Act
6
violations occurring in connection with the September and October meetings; (4) enjoin the Board
from further violations of the Sunshine Act; (5) enjoin the Board from violating the UCR
Agreement and order it to reopen the 2018 renewal period; and (6) compel INDOR to open the
2018 renewal period. See Am. Compl. at 16–17.
With the filing of their Amended Complaint, Plaintiffs once more sought injunctive relief.
See 12 Percent Logistics, Inc. v. Unified Carrier Registration Plan Bd., 280 F. Supp. 3d 118
(D.D.C. 2017), appeal dismissed, No. 17-5287, 2018 WL 3156843 (D.C. Cir. May 29, 2018)
[hereinafter 12 Percent II]. Though Plaintiffs had offered evidence that the Board historically
failed to publish timely notices of full Board meetings in the Federal Register and consistently
used boilerplate language to describe the subject matter of upcoming Board meetings, the court
denied injunctive relief on the ground that Plaintiffs had failed to show irreparable harm. See id.
at 124.
Unsatisfied, Plaintiffs made a third attempt at securing injunctive relief in December 2017.
See Order, ECF 47 [hereinafter 12 Percent III]. Plaintiffs complained that the UCR Board still
had not adhered to the Sunshine Act’s notice requirements with respect to upcoming Board and
subcommittee meetings. Id. at 1. Plaintiffs also presented evidence, for the first time, that the
Board historically had not publicly noticed subcommittee meetings, even though legally required
to do so. Pls.’ Third Mot. for TRO & Prelim. Inj., ECF No. 46, Mem. in Support, ECF No. 46-1,
at 7. The court rejected Plaintiffs’ demand for injunctive relief once more, finding that Plaintiffs
had not established irreparable harm since they were aware of the upcoming meetings and thus
had “every opportunity to participate in them.” 12 Percent III at 1.
Plaintiffs returned the next month to try yet again. In January 2018, Plaintiffs asked for an
order enjoining the Board to comply with the Sunshine Act and properly notice all future Board
7
and subcommittee meetings during the pendency of their appeal of the court’s denial of their
second request for an injunction. See generally 12 Percent Logistics, Inc. v. Unified Carrier
Registration Plan Bd., 289 F. Supp. 3d 73 (D.D.C. 2018) [hereinafter 12 Percent IV]. The court
granted the injunction as to subcommittee meetings, in part because of evidence showing that the
Board’s chairman wrongly believed that subcommittee meetings are not subject to the Sunshine
Act. The court required the Board “to comply with the Sunshine Act’s notice requirements before
it convenes a subcommittee meeting” during the pendency of the appeal. Id. at 76. The court,
however, once more denied injunctive relief as to Board meetings, holding that Plaintiffs again
had not shown irreparable harm. Id.
But Plaintiffs were not finished. A few months later, Plaintiffs filed an emergency motion
asking the court to cancel the Board’s ten subcommittee meetings scheduled for June and July
2018 and to hold the Board in contempt for allegedly violating the court’s injunction.
See generally 12 Percent Logistics, Inc. v. Unified Carrier Registration Plan Bd., 316 F. Supp. 3d
22 (D.D.C. 2018) [hereinafter 12 Percent V]. The court denied Plaintiffs’ motion for failure to
meet and confer as required by Local Civil Rule 7(m), see LCvR 7(m), as well as on the merits,
finding that the Board had substantially complied with the Sunshine Act. See 12 Percent V, 316
F. Supp. 3d at 25.
III. LEGAL STANDARD
Each party now moves for summary judgment. Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “genuine dispute” of a “material fact”
exists when the fact is “capable of affecting the substantive outcome of the litigation” and “the
8
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Elzeneiny
v. District of Columbia, 125 F. Supp. 3d 18, 28 (D.D.C. 2015).
In assessing a motion for summary judgment, the court considers all relevant evidence
presented by the parties. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir.
2008). The court looks at the facts in the light most favorable to the non-moving party and draws
all justifiable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). If the court determines “no reasonable jury could reach a verdict in her favor,” then
summary judgment is appropriate. Wheeler v. Georgetown University Hosp., 812 F.3d 1109, 1113
(D.C. Cir. 2016). When ruling on a summary judgment motion, courts are “not to make credibility
determinations or weigh the evidence.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006).
IV. DISCUSSION
The court starts with Plaintiffs’ assertion that the Board and INDOR violated the UCR Plan
Agreement by delaying the start of the 2018 registration period, and then turns to their Sunshine
Act claim.
A. Violation of the UCR Agreement
Defendants offer two reasons why the court should enter judgment in their favor on
Plaintiffs’ claim arising under the UCR Plan Agreement. First, they argue that the claim is moot.
Second, they contend Plaintiffs have no private right of action to enforce the UCR Plan Agreement.
The court agrees with both contentions.
1. Mootness
a. The Board’s opening of the 2018 registration period renders moot
Plaintiffs’ claim under the UCR Plan Agreement
“Federal courts lack jurisdiction to decide moot cases because their constitutional
authority extends only to actual cases or controversies.” Conservation Force, Inc. v. Jewell, 733
9
F.3d 1200, 1204 (D.C. Cir. 2013) (quoting Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70
(1983)). “In general, a case becomes moot ‘when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.’” Id. (quoting Larsen v. U.S. Navy, 525
F.3d 1, 3 (D.C. Cir. 2008)). “If events outrun the controversy such that the court can grant no
meaningful relief, the [claim] must be dismissed as moot.” McBryde v. Comm. to Review Circuit
Council Conduct & Disability Orders of the Judicial Conference of the U.S., 264 F.3d 52, 55 (D.C.
Cir. 2001). “The initial ‘heavy burden’ of establishing mootness lies with the party asserting a
case is moot, but the opposing party bears the burden of showing an exception applies[.]”
Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (citations
omitted).
Here, there can be little doubt that “events [have] outrun the controversy” over the delayed
opening of the 2018 registration period. On January 5, 2018, the UCR Plan Board opened the
2018 registration period, see INDOR Def.’s Facts ¶ 2; Pls.’ Reply at 12, and the period has since
expired. The sole affirmative relief that Plaintiffs seek for the Board’s and INDOR’s alleged
violations of the UCR Plan Agreement is to open registration for 2018 immediately. See Am.
Compl. at 17 ¶¶ 5, 6; see also id. ¶ 75. 4 Of course, such relief is no longer available. Nor can
Plaintiffs’ request for declaratory judgment save the claim from mootness. See NBC-USA Hous.,
Inc., Twenty-Six v. Donovan, 674 F.3d 869, 873 (D.C. Cir. 2012). Accordingly, Plaintiffs’ claim
arising under the UCR Plan Agreement is moot. 5
4
Plaintiffs’ proposed order granting summary judgment in their favor asks the court to enjoin “[t]he UCR Plan Board,
INDOR, and any current or subsequent agent of the UCR Plan Board . . . from further violating the UCR Agreement.”
Pls.’ Mot., Proposed Order, ECF No. 75-2, at 2. This relief is more expansive than sought in Plaintiffs’ Amended
Complaint. Compare Am. Compl. at 17 ¶¶ 5, 6. Accordingly, the court does not consider it.
5
Plaintiffs also ask the court to “take appropriate remedial action” for the Sunshine Act violations that occurred in
connection with the September 14, 2017, and October 26, 2017, meetings. See Am. Compl. at 16 ¶ 3. To the extent
“appropriate remedial action” can be construed to mean opening the registration period for 2018, that aspect of
Plaintiffs’ Sunshine Act claim likewise is moot.
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b. Exceptions to the Mootness Doctrine do not Apply
Plaintiffs do not seriously dispute that their claim under the UCR Plan Agreement is moot
insofar it seeks opening of the 2018 registration period. Plaintiffs argue, however, that the “capable
of repetition, yet evading review” exception applies and enables the court to reach the merits,
because the Board is likely to delay the registration period in the future and again violate the UCR
Plan Agreement. Pls.’ Reply to INDOR Def.’s Opp’n., ECF No. 96 [hereinafter Pls.’ Reply to
INDOR], at 6–9. Plaintiffs’ concern is not unfounded. As Plaintiffs point out, in September 2018,
the Board yet again postponed opening the registration period, this time for 2019. See Pls.’ Notice
to Court Regarding Delay of the 2019 UCR Renewal Period, ECF No. 101. Plaintiffs’ argument
would have some force but for recent Board action that renders the “capable of repetition, yet
evading review” exception inapplicable. See District of Columbia v. Doe, 611 F.3d 888, 894 (D.C.
Cir. 2010) (stating that the “capable of repetition, yet evading review” exception applies only if
“there [is] a reasonable expectation that the same complaining party will be subject to the same
action again”) (internal quotation marks and citation omitted).
At its August 2018 meeting, the Board amended the UCR Plan Agreement to allow the
registration period to open after October 1, if the Secretary of Treasury has yet to act on the Board’s
fees recommendations. See Decl. of Avelino A. Gutierrez, ECF No. 102, ¶ 4. The Agreement
now states that “[t]he registration period . . . shall begin on the later of October 1, or if the Board
has made a fee level change recommendation to the USDOT Secretary, the date the fee level
rulemaking takes effect.” Id. (emphasis added); see also id. (similarly amending definition of
“renewal period”). Thus, by virtue of the amendment, the action that Plaintiffs fear will recur in
the future—delaying the registration beyond October 1—no longer will violate the UCR Plan
Agreement, so long as the delay arises from the Secretary of Transportation’s failure to timely act
11
on the Board’s fees recommendation. Plaintiffs offer no reason to believe that the Board will delay
the renewal period in the future for any other purpose. Therefore, the “capable of repetition, yet
evading review” exception cannot save Plaintiffs’ claim.
* * *
Before proceeding further, the court notes that Plaintiffs object to the way in which the
Board amended the UCR Plan Agreement at its August 2018 meeting. See Reply to Chairman
Gutierrez’s Decl., ECF No. 103 [hereinafter Def.’s Reply to Gutierrez Decl.]. 6 They assert, among
other things, that the Board’s amendment process did not follow procedures set forth in the
Agreement and the UCR Act, see id. at 3–4, and that the Board did not notice the meeting
consistent with the Sunshine Act, see id. at 2–3. Plaintiffs say that these deficiencies further
support their claims. See id. at 8. Maybe they do, maybe they don’t, but in either event, these
contentions cannot be resolved as part of this action. They are beyond the scope of Plaintiffs’
Amended Complaint and cannot be raised for the first time in a supplemental notice filed in support
of their summary judgment briefing. See Winder v. District of Columbia, 555 F. Supp. 2d 103,
111 (D.D.C. 2008) (“[Plaintiff] may not add a new claim through summary judgment briefing.”).
2. Private Right of Action
Though the court views Plaintiffs’ claim under the UCR Plan Agreement as moot, in the
interest of completeness, the court addresses the Board’s alternative contention that Plaintiffs have
no private right of action to enforce the UCR Plan Agreement.
The parties agree that neither the UCR Act nor the UCR Plan Agreement provides an
express private right of action to registrants. See UCR Def.’s Mot. at 14 (arguing that the statute
6
The Board moves to strike Plaintiffs’ Reply to Chairman Gutierrez’s declaration. See Def.’s Mot. to Strike,
ECF No. 104. The court declines to do so. Although the court will not consider the legal arguments made in the
Reply, the court will consider the record evidence referenced therein.
12
“unquestionably demonstrates that Congress did not intend to create a private right of action”);
Pls.’ Reply at 12–13 (not contesting the absence of an express right). Lacking an express hook,
Plaintiffs rely on two theories to state a claim. First, they contend that the UCR Act provides an
implied private right of action. See id. at 12–15. Second, they argue that the UCR Plan Agreement
is an interstate compact and they have standing as third-party beneficiaries to enforce it. See id.
15–20. Both arguments are non-starters.
a. Implied right of action under the UCR Act
To determine whether Congress intended to create an implied cause of action, courts must
look first and foremost to the “text and structure” of the statute. Alexander v. Sandoval, 532 U.S.
275, 288 (2001); Lee v. U.S. Agency for Int’l Develop., 859 F.3d 74, 77 (D.C. Cir. 2017). A court
also may consider the four factors set forth by the Supreme Court in Cort v. Ash:
(1) whether the plaintiff is one of the class for whose benefit the statute was enacted;
(2) whether some indication exists of legislative intent, explicit or implicit, either
to create or to deny a private remedy; (3) whether implying a private right of action
is consistent with the underlying purposes of the legislative scheme; and
(4) whether the cause of action is one traditionally relegated to state law, such that
it would be inappropriate for the court to infer a cause of action based solely on
federal law.
Tax Analysts v. I.R.S., 214 F.3d 179, 185 (D.C. Cir. 2000) (citing Cort v. Ash, 422 U.S. 66, 78
(1975)). “[T]he Court did not decide that each of these factors is entitled to equal weight,” and so
“[t]he central inquiry remains whether Congress intended to create, either expressly or by
implication, a private cause of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575 (1979).
In this case, the “text and structure” of the UCR Act conclusively establish that the Act
contains no implied right of action. The UCR Act contains a section titled “Enforcement,” which
provides that, “[u]pon request by the Secretary, the Attorney General may bring a civil action in
the United States district court . . . to enforce an order issued to require compliance with this section
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and with the terms of the UCR agreement.” 49 U.S.C. § 14504a(i)(1). There is, however, no
similar grant of a right to sue for registrants. Moreover, the Enforcement section states that, “on a
proper showing [the court] shall issue a temporary restraining order or a preliminary or permanent
injunction requiring that the State or any person comply with this section.” Id. § 14504a(i)(3)
(emphasis added). 7 Notably, the Act says nothing about granting injunctive relief against the
Board. These provisions, i.e., the “text and structure” of the Act, make clear that the Act supplies
no private right of action to a registrant to enforce the UCR Agreement against the Board.
Cf. M.F. v. State of New York Exec. Dep’t Div. of Parole, 640 F.3d 491, 496 (2d Cir. 2011)
(reaching a similar conclusion with respect to the Interstate Compact for Adult Offender
Supervision).
The court could stop here, but there is more. Nothing in the statute creates any rights in
favor of registrants as against the Board. Other than establishing the Board, the Act largely speaks
only of states and their obligations under the Agreement. Moreover, the clear purpose of the statute
is to establish a system by which to collect fees and information from carriers who operate in
interstate commerce and distribute those fees to member states. See generally 49 U.S.C. § 14504a.
Although a centralized system to impose and collect fees and information surely benefits interstate
carriers, the Act cannot be read to have as a primary aim to protect their interests. In these respects,
the UCR Plan Agreement is very much like the Interstate Compact on Adult Supervision and its
predecessor that the Second and Third Circuits have found do not create an implied right of action
for offenders. See M.F., 640 F.3d at 496 (“‘The language of the Compact itself creates rights for
7
The Act incorporates the definition of “person” contained in 1 U.S.C. § 1 and 49 U.S.C. § 13102. It is not apparent
to the court that the Board qualifies as a “person.” The court makes no formal finding, however, because there remains
a genuine dispute of fact as to the Board’s formal status under federal law. Compare Pls.’ Facts ¶ 3 (alleging the
Board to be a “non-governmental, private entity” and an “interstate compact organization”) with UCR Def.’s Facts
¶ 3 (demurring on legally classifying the Board’s status).
14
the various states who are signatories to it. It does not create rights for probationers or parolees[,]’
[and] . . . there is no indication, in the Compact itself or in its authorizing statute, that Congress or
the compacting states intended to create a remedy to benefit offenders like [plaintiff].”) (quoting
Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95, 104 (3d Cir. 2008).
If there were any doubt remaining about the absence of an implied right of action,
D.C. Circuit precedent resolves it. At an early stage in this case, Plaintiffs conceded that Board
action is not subject to review under the Administrative Procedure Act (“APA”). See Nov. 29,
2017 Hr’g Tr., ECF No. 62, at 15. That concession is significant. In El Paso Natural Gas Co. v.
United States, the D.C. Circuit confronted the question whether the Indian Dump Cleanup Act,
see 25 U.S.C. § 3901 et seq., contains an implied private right of action. 750 F.3d 863, 890 (D.C.
Cir. 2014). In answering the question “no,” the court observed that the plaintiff lacked a cause of
action under the APA. Such absence, the court explained, was strong evidence that Congress did
not intend to imply a right of action.
[T]he absence of an APA claim here “only reinforces [the court’s]
view that the [statute] creates no implied right of action, for it would
be quite odd to hold that Congress implicitly created a cause of
action despite another statute’s preclusion of such an action. Given
Congress’s presumed awareness of the APA’s provisions, we
believe—in accordance with the holdings of other circuits—that
Congress would make explicit any intent to create a cause of action
in these circumstances.”
Id. (quoting Godwin v. Sec’y of HUD, 356 F.3d 310, 312 (D.C. Cir. 2004)). So it is here. Had
Congress wanted to expose the Board’s decision-making to judicial scrutiny by private-party
actions, Congress easily could have made the Board subject to the APA, just as it subjected the
Board to the Sunshine Act. But the fact that Congress left the Board outside the reach of the APA
is compelling evidence that it did not intend for registrants to have a right of action against the
Board.
15
Plaintiffs’ position to the contrary rests on the head of pin. Plaintiffs point only to the UCR
Act’s limitation on state action to prevent an “unreasonable burden” on interstate commerce as the
source of a private right of action. Pls.’ Reply at 13. That provision states:
[I]t shall be considered an unreasonable burden upon interstate commerce for any
State or any political subdivision of a State or any political authority of two or more
States to enact, impose, or enforce any requirement or standards with respect to, or
levy any fee or charge on, any motor carrier or motor private carrier . . .
“in connection with,” among other things, registering or making other required filings with a state.
49 U.S.C. § 14504a(c). Plaintiffs take from this text that “Congress intended to provide a
mechanism for redress to parties that suffer unjust and unreasonable burdens, specifically those
that are charged to comply with the requirements of the UCR Authorizing Statute.” Pls.’ Reply at
13.
Plaintiffs’ reading of the Act flies in the face of any rational interpretation of its “text and
structure.” First, the “unreasonable burden” section addresses only the imposition of fees or other
standards in connection with various state-level filings. 49 U.S.C. § 14504a(c). It says nothing
about the timing of registration under the Act. Second, that section sets forth restrictions on the
fee-charging and standard-setting authority of member states, their political subdivisions, “or any
political authority of two or more States.” Id. It places no limitations on the Board, let alone on
the Board’s capacity to delay the opening of annual registration. 8 Finally, there is no reason to
believe that Congress embedded a private right of action into a provision designed to lessen the
burdens on interstate commerce. Admittedly, the limitations placed on member states protects
registrants from excess fees and obligations. But the Act’s primary concern is with not burdening
interstate commerce, not protecting individual carriers.
8
The “unreasonable burden” provision does apply to INDOR. But, of course, this suit has nothing to do with any of
the restrictions set forth in that provision.
16
In short, the UCR Act contains no implied private right of action that would support
Plaintiffs’ claim that the Board violated the UCR Plan Agreement in 2017 by delaying the start of
the registration period.
b. Third-party beneficiaries of the UCR Plan Agreement
Plaintiffs next assert that they can bring a claim against the Board and INDOR for violating
the UCR Plan Agreement as third-party beneficiaries of the interstate compact. They claim that
the “clear intent of the UCR Agreement is to establish for interstate Carriers a simple process under
which interstate Carriers must register and pay state fees” and that, as a result, Plaintiffs “are the
intended ‘third-party beneficiaries’ of the UCR Agreement” who possess the right to sue to enforce
the Agreement. Pls.’ Reply at 19. The court disagrees.
The UCR Plan Agreement is an interstate compact and thus is subject to principles of
contract law. See Tarrant Regional Water Dist. v. Herrmann, 569 U.S. 614, 628 (2013) (“Interstate
compacts are construed as contracts under the principles of contract law.”); Doe, 513 F.3d at 105
(“Interstate compacts may be considered contracts because of the manner in which they are
enacted: there is an offer (the presentation of a reciprocal law to state legislatures), an acceptance
(the actual enactment of the law) and consideration (the settlement of a dispute or the creation of
a regulatory scheme).”). Third-party beneficiaries are entitled to enforce the provisions of a
contract to which they are not themselves parties. See Doe, 513 F.3d at 106 (“In addition to the
parties to a contract, ‘third-party beneficiaries’ of the contract can also enforce its terms.”). “In
order to find that [a plaintiff] is a third-party beneficiary, the Court must . . . determine whether
the contracting parties had an express or implied intention to benefit directly the party claiming
such status.” Mariano v. Gharai, 999 F. Supp. 2d 167, 173 (D.D.C. 2013) (internal quotations
omitted); cf. Oehme, van Sweden & Assocs., Inc. v. Maypaul Trading & Servs., LTD., 902 F. Supp.
17
2d 87, 100 (D.D.C. 2012) (“‘Third-party beneficiary status requires that the contracting parties had
an express or implied intention to benefit directly’ the party urged to be a third-party beneficiary.”)
(quoting Fort Lincoln Civic Ass’n v. Fort Lincoln New Town Corp., 944 A.2d 1055, 1064 (D.C.
2008)); see also Intelect Corp. v. Cellco P’ship GP, 160 F. Supp. 3d 157, 189 (D.D.C. 2016)
(accord). Thus, the question is whether the states intended to make registrants third-party
beneficiaries of the Agreement. The court finds that they did not.
As discussed, the purpose of the UCR Agreement is to “govern[] the collection and
distribution of registration and financial responsibility information provided and fees paid by
motor carriers, motor private carriers, brokers, freight forwarders, and leasing companies pursuant
to this section.” 49 U.S.C. § 14504a(a)(8). Its focus is on helping states, by facilitating their
efforts to regulate interstate carriers. Registrants are merely subject to the compact; they are not
the beneficiaries of it.
This reading is supported by Third Circuit’s decision in Doe v. Pennsylvania Board on
Probation & Parole. The court in Doe addressed the Interstate Compact Concerning Parole and
Probation, which provided as follows: “It is the purpose of this compact . . . through means of joint
and cooperative action among the compacting states: . . . to provide for the effective tracking,
supervision, and rehabilitation of these offenders . . .; and to equitably distribute the costs, benefits
and obligations of the compact.” Doe, 513 F.3d at 106–07. Seeking to enforce one of its
provisions, a parolee claimed that he was a third-party beneficiary of the Interstate Compact.
See id. at 105–07. The Third Circuit held otherwise. It explained that “[t]he Compact speaks of
cooperation between states, protection of the rights of victims, [and] regulation and control of
offenders across state borders[.]” Id. at 107. Based on this reading, the court held, the “[plaintiff]
and similarly situated parolees are not beneficiaries of this Compact; they are merely the subjects
18
of it.” Id. The parallels between Doe and this case are clear. Like the Interstate Compact in Doe,
the UCR Plan Agreement says nothing about benefitting registrants; it speaks only of coordinating
the collection of registrations and fees among member states. See generally UCR Def.’s Exs. at
8–18 (UCR Agreement). Thus, just as in Doe, Plaintiffs and other similarly situated registrants
are “not beneficiaries of this Compact; they are merely the subjects of it.” Doe, 513 F.3d at 107.
Plaintiffs are not third-party beneficiaries of the UCR Plan Agreement and therefore cannot sue to
enforce it. 9
B. Sunshine Act Claims
The court next turns to Plaintiffs’ claim alleging violations of the Sunshine Act, 5 U.S.C.
§ 552b(e). As discussed earlier, the UCR Act provides that “[m]eetings of the board and any
subcommittees or task forces appointed under paragraph (5) shall be subject to the provisions of”
the Sunshine Act. 49 U.S.C. § 14504a(d)(4)(D). The UCR Plan Agreement is to the same effect.
UCR Def.’s Exs. at 22. Plaintiffs assert that, as to its own meetings, the Board violated the
Sunshine Act’s requirements in multiple ways, discussed in greater detail below. See Pls.’ Mot.
for Summ. J., ECF No. 75; Pls. Mem. in Support of Summ. J., ECF No. 75-1 [hereinafter Pls.’
Mem.], at 6–11. Moreover, they contend that Board subcommittee meetings historically have not
complied with the Sunshine Act’s requirements at all. Id. at 11–13. Plaintiffs ask the court to
“[e]njoin the UCR Plan board from further violating the Sunshine Act.” Compl. at 16 ¶ 4. 10
9
Plaintiffs also assert that they are third-party beneficiaries of the various Memorandums of Understanding between
INDOR and the Board, which govern INDOR’s administration of the UCR Plan Agreement. Pls.’ Reply at 15–16.
Because this argument relies on the premise that Plaintiffs are third-party beneficiaries of the UCR Plan Agreement,
see id., the court’s holding to the contrary addresses this claim as well.
10
Plaintiffs also ask the court to “invalid[ate] and set aside” Board actions taken at its September and October 2017
meetings, including “the change in the Opening Day for the 2018 UCR Renewal Period.” Id. at 16 ¶ 2. But for the
reasons already discussed, that requested relief is moot. The 2018 registration period has come and gone, such that
setting aside the decision to delay its opening would supply provide no meaningful relief at this point. Moreover, to
the extent Plaintiffs ask the court to set aside other Board actions taken at those meetings, the court declines to do so.
Plaintiffs have not identified any other Board action they seek to invalidate and, even if they had, Plaintiffs have not
19
1. Success on the Merits
A plaintiff seeking a permanent injunction must show actual success on the merits, rather
than a mere likelihood of success. See Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531,
546 n.12 (1987). The court therefore begins with assessing the merits of Plaintiffs’ claimed
violations of the Sunshine Act.
a. Untimely public announcements
The Sunshine Act requires the Board to “make public announcement, at least one week
before the meeting, of the time, place, and subject matter of the meeting, whether it is to be open
or closed to the public, and the name and phone number of the official designated by the agency
to respond to requests for information about the meeting.” 5 U.S.C. § 552b(e)(1). Based on a
survey conducted of 128 Board meetings, stretching back to 2006, Plaintiffs assert that the Board
provided a “public announcement” for only 3% of its meetings. Pls.’ Mem. at 6; see also
Am. Compl., Ex. 13, ECF No. 35-2. The Board counters that it has substantially complied with
the “public announcement” requirement. UCR Def.’s Mot at 9–12.
The Sunshine Act does not define what qualifies as a “public announcement.” Nor does
any statutory text or case law illuminate the requirement. The court therefore turns to legislative
history. See Owens v. BNP Paribas, S.A., 897 F.3d 266, 279 (D.C. Cir. 2018) (stating that
“legislative history may help discern the meaning of an otherwise ambiguous text”). A House
report, addressing a different section of the Sunshine Act, provides guidance. Section 552b(d)(3)
requires agencies to disclose, among other things, the results of a vote to close a meeting. As to
that section, the House report states:
This subsection and others in the bill require that certain information be made
available to the public. . . . Means of publicizing such information should include
shown that this case presents the “rare” circumstance where a Sunshine Act violation warrants vacating agency action.
12 Percent I, 282 F. Supp. 3d at 197–98.
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posting notices on the agency’s public notice boards, publishing them in
publications whose readers may have an interest, and sending them to the
individuals on the agency’s general mailing list or a mailing list maintained for
those who desire to receive such material.
H.R. Rep. No. 880 (part I), 94th Cong., 2d Sess. 14 (1976) (emphasis added) [hereinafter House
Rpt.]. As this passage suggests, when it adopted the Sunshine Act, Congress contemplated that an
agency could satisfy public notice requirements with a meeting notice that did not necessarily
reach the public at large, but instead one that was targeted to a group of interested persons.
A Federal Register notice, by contrast, would reach a wider audience.
Using this legislative history as a guide, the court finds that the Board has substantially
complied with the Sunshine Act’s “public announcement” requirement, at least with respect to
disclosing the time and place of the meeting. The Board historically has provided a “public
announcement” of its upcoming meetings by electronic mail “to a list comprised of those persons
who have previously indicated a desire to be included in the UCR email list and who have provided
their email address (which includes representatives of Plaintiffs).” UCR Def.’s Exs. at 3 ¶ 8. The
e-mail notice includes a dial-in phone number for members of the public to participate in the
meeting. See id. at 37. Such delivery comports with making a public announcement “by way of
a mailing list maintained for those who desire to receive such material.” Today, the Board provides
public notice of its meetings through its new website. See id. ¶ 10. Thus, insofar as the “public
announcement” mandate requires the Board to inform the public about the place and time of a
meeting, the Board has substantially complied.
b. Untimely Federal Register notices
Plaintiffs’ second contention is that the Board has consistently failed to adhere to the
Sunshine Act’s Federal Register notice requirement. That assertion, however, rests on a
fundamental misreading of the Act. Plaintiffs contend that the “plain language of the Sunshine
21
Act requires . . . publication of the announcement in the Federal Register at least seven days prior
to the meeting.” Pls.’ Mem. at 5; see also Pls.’ Reply at 3. But that is not what the Act says.
Rather, it directs that, “[i]mmediately following each public announcement,” the agency “shall
also [submit] for publication in the Federal Register” the same information contained in the public
announcement. 5 U.S.C. § 552b(e)(3) (emphasis added). Thus, the Sunshine Act distinguishes
between a “public announcement,” which is subject to a pre-meeting deadline of one week, and
the Federal Register notice, which is not. An agency complies with the Federal Register notice
requirement so long as it “immediately” submits the relevant information following the public
announcement. Id.
Here, Plaintiffs fail to carry their burden of proving that the Board routinely has delayed
making “immediate” submissions to the Federal Register. Indeed, the uncontested record shows
otherwise. See UCR Def.’s Exs., 4 ¶ 10 (listing public announcement and Federal Register
submission dates; in only two instances, November 2017 and December 2017, did the submission
to the Federal Register follow a public announcement by more than a few days). 11 The court
therefore finds in favor of the Board as to this aspect of Plaintiffs’ Sunshine Act claim. 12
c. Notice of meetings’ subject matter
Next, Plaintiffs take the Board to task for not providing adequate descriptions of the
“subject matter” of upcoming meetings, as required by both the “public announcement” and
11
In response to the Board’s factual assertions about its notice practices, Plaintiffs consistently state that they “lack
knowledge to respond.” See, e.g., Pls.’ Reply; Pls.’ Reply to UCR Def.’s Facts, ECF 97-2, ¶¶ 12, 13, 16, 17, 20, 21,
26, 31, 36, 41. The court offered Plaintiffs the opportunity to take discovery in this case, but they elected to proceed
to summary judgment. Their “lack of knowledge” thus cannot serve as an excuse to deny a fact assertion made by the
Board. The court therefore treats such facts as conceded.
12
For the first time in their reply brief, Plaintiffs suggest that the Board intends to “obfuscate and conceal” by its
current practice of posting on its website both a preliminary public notice and a final public notice of upcoming
meetings, and only making the Federal Register submission after the latter. Pls.’ Reply at 4. The court, however,
infers no nefarious intent from the Board’s public posting of an additional notice of its meetings.
22
Federal Register provisions of the Sunshine Act. 5 U.S.C. § 552b(e)(1), (3). Plaintiffs have shown
that, for every one of its meetings, the Board submitted the same boilerplate to the Federal Register
to describe the meeting’s subject matter: “Matters to be Considered: The Unified Carrier
Registration Plan Board of Directors (the Board) will continue its work in developing and
implementing the Unified Carrier Registration Plan and Agreement and to that end, may consider
matters properly before the Board.” Pls.’ Facts ¶ 32. The Board does not dispute this fact.
See UCR Def.’s Facts ¶ 32 (providing no facts to the contrary).
Once more, the Sunshine Act and case law are silent as to what the “subject matter”
disclosure must contain. But, again, legislative history is informative. The same House report
discussed above states that “[t]he subject-matter identification required by this subsection must be
of a specific nature, e.g., the docket names or titles and numbers, rather than a general statement
as to the generic subjects to be discussed.” House Rpt. at 15 (emphasis added). The Board’s
boilerplate notices clearly fail to satisfy the “specific nature” standard.
The Board contends that, through its newly initiated online notices, it discloses an agenda
for upcoming meetings, thereby complying with the Act’s subject-matter disclosure requirement.
The agenda postings might satisfy the subject-matter notice required as a component of the
mandated “public announcement.” But the Board does not contest that its Federal Register notices
continue to contain the same boilerplate text. True, the Federal Register notice now directs the
reader to the Board’s website for more information, but the Sunshine Act requires that the “specific
nature” of the meeting be made available in the Federal Register itself. Identifying the URL of the
Board’s website is no substitute. The court therefore finds that Plaintiffs have succeeded in
showing the inadequacy of the Board’s subject-matter disclosures.
23
d. Notice regarding subcommittee meetings
Finally, the court turns to Plaintiffs’ contention that the Board’s subcommittee meetings
violate the Sunshine Act. In its January 2018 decision on one of Plaintiffs’ requests for injunctive
relief, the court held that Plaintiffs “have shown they are likely to succeed on the merits” on this
aspect of their claim. 12 Percent VI, 289 F. Supp. 3d at 79–81. At that time, the court noted that,
“[a]ccording to Plaintiffs’ review of the public record . . . with perhaps one exception, the UCR
Board has never complied with the Sunshine Act’s public notice requirements with respect to
subcommittee meetings.” Id. at 79–80. Plaintiffs largely rely on the same factual record here. See
Pls.’ Facts ¶¶ 30, 36, 37, 50, 51, 54, 56, 57 (relying on evidence previously submitted to the court).
In response to this evidence, the Board offers little rebuttal. It asserts that “the process the
Board uses to provide public notice of . . . subcommittee meetings has evolved and improved over
time, most notably with the inception of the UCR Plan’s website.” UCR Def.’s Facts at 8; UCR
Def.’s Mot. at 2. The Board, however, offers no facts to support this general assertion. The
declaration upon which the Board relies does not distinguish between Board and subcommittee
meetings. See UCR Def.’s Exs. at 4 ¶ 8. Moreover, of the meeting announcements the Board has
put in evidence, id., Exs. B–X, only one contains any mention of subcommittees, see id., Ex. V.
Such evidence is not nearly enough to defeat the overwhelming evidence that the Board
historically has not followed the Sunshine Act with respect to its subcommittee meetings.
The Board also relies on an earlier finding by the court that “Defendant’s notices for the
upcoming subcommittee meetings substantially complied with the court’s order requiring it to
adhere to the notice requirements of the Sunshine Act.” 12 Percent V, 316 F. Supp. 3d at 25. The
court’s finding there, however, was made in a different context. Plaintiffs then had requested the
extraordinary remedy of cancelling ten subcommittee meetings already scheduled and enjoining
24
any further meetings “without first complying with the notice requirements of the Sunshine Act.”
Id. at 24 n.1. Plaintiffs faced a much greater burden there because they alleged civil contempt.
See id. at 25 (holding that Plaintiffs “could not meet the stringent standard to show civil
contempt”). In the present posture, however, Plaintiffs do not face the same steep evidentiary
burden. Accordingly, the court finds that the Board has not complied with its Sunshine Act
obligations as to subcommittee meetings.
2. Permanent Injunction Equitable Factors
Although Plaintiffs have succeeded on the merits as to certain aspects of their Sunshine
Act claim, permanent injunctive relief is not available as a matter of right. Plaintiffs still must
demonstrate that: (1) they have suffered an irreparable injury (even though they wrongly assert
otherwise, see Pl.’s Mem. at 10); (2) remedies available at law, such as monetary damages, are
inadequate to compensate for the injury; (3) the balance of hardships between the parties favors an
equitable remedy; and (4) an injunction is not contrary to the public interest. See Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 156–57 (2010). A permanent injunction is a “forward-
looking” remedy, Gratz v. Bollinger, 539 U.S. 244, 284 (2003) (Stevens, J., dissenting), therefore
the court must consider whether such relief is “now needed to guard against any present or
imminent risk of likely irreparable harm,” Monsanto, 561 U.S. at 162. Applying these equitable
factors, the court finds that a limited permanent injunction is warranted against the Board.
a. Irreparable harm
The court previously held that Plaintiffs were irreparably harmed by the Board’s total
failure to conform its subcommittee meetings to the Sunshine Act’s notice requirements. See 12
Percent VI, 289 F. Supp. 3d at 80. In other opinions, however, the court held that Plaintiffs had
not established irreparable harm from the Board’s use of boilerplate notices as to particular
25
meetings and thus declined to award Plaintiffs injunctive relief. See 12 Percent II, 280 F. Supp.
3d at 122; 12 Percent IV, 289 F. Supp. 3d at 78. The court found that “Plaintiffs [had] offered no
actual proof that the absence of specifics has adversely impacted their participation in past
meetings or is likely to have such effect in the future,” and held that the Board’s new practice of
posting the agendas to its website ameliorated any injury. 12 Percent IV, 289 F. Supp. 3d at 79.
The question the court now confronts is whether the Board’s past non-compliance creates
a “present or imminent risk of likely irreparable harm.” Monsanto, 561 U.S. at 162. The Board
says “no,” arguing that there is no longer a risk of future Sunshine Act violations, because it now
posts public notices of upcoming meetings and meeting agendas on its website. See UCR Def.’s
Mem. at 9–12. The website postings, the Board insists, ensure that Plaintiffs and the public will
receive all notices required under the Sunshine Act in a timely manner. Regrettably, the website
is not a cure-all for the Board’s Sunshine Act failures. The record shows that the Board’s Federal
Register notices remain deficient with respect to the “specific nature” of the subject matter of
meetings. For instance, with respect to its August 23, 2018, meeting at which the Board amended
the UCR Plan Agreement, the Federal Register notice contained the same boilerplate the Board
has used as a matter of course. See Pls.’ Reply to Gutierrez Decl., Ex. 2, ECF No. 103-2. The
Federal Register notice for that meeting did direct the reader to the Board’s website for an
upcoming agenda, but as previously stated, a referenced hyperlink does not satisfy the Sunshine
Act’s requirement that the actual subject matter of the meeting be submitted for publication.
Moreover, even if a reader managed to find her way to the online agenda, it supplied no
information as to how the Board intended to amend the UCR Plan Agreement. See id., Ex. 3, ECF
No. 103-3. The Proposed Agenda simply states that the Chair would “[r]eview proposed
amendments to the UCR Agreement,” id., offering no clue as to how the Board contemplated doing
26
so, let alone specifying the nature of the anticipated amendments. Importantly, these Plaintiffs
have shown that they were harmed by this deficient Federal Register notice. See id., Ex. 1, Third
Decl. of Amanda Narog, ECF No. 103-1. The court therefore concludes that the Board’s Sunshine
Act violations pose “a present or imminent risk of likely irreparable harm.” Monsanto, 561 U.S.
at 162.
b. Other remedies
No other remedy is adequate to compensate Plaintiffs for the harm suffered. The lost
opportunity to meaningfully participate in public meetings is precisely the kind of injury that
demands an equitable remedy.
c. Balance of hardships and the public interests
The balance of hardships favors Plaintiffs. The Board does not contend—nor could it
reasonably do so—that an order enjoining it from violating a public disclosure law it is legally
obligated to follow would present a hardship.
d. Public interest
Finally, the public interest plainly favors injunctive relief. “Forcing federal agencies to
comply with the law is undoubtedly in the public interest[.]” Cent. United Life, Inc. v. Burwell,
128 F. Supp. 3d 321, 330 (D.D.C. 2015). Additionally, “[t]he public interest is, no doubt, served
by a transparent government.” Judicial Watch, Inc. v. Dep’t of Commerce, 501 F. Supp. 2d 83, 92
(D.D.C. 2007).
* * *
The court therefore grants, in part, Plaintiffs’ request for permanent injunctive relief.
27
V. CONCLUSION
For the foregoing reasons, the court denies Plaintiffs’ motion for summary judgment as to
Defendant INDOR and grants Defendant INDOR’s motion for summary judgment. Furthermore,
the court grants in part and denies in part Plaintiffs’ Motion for Summary Judgment against
Defendant UCR Plan Board and grants in part and denies in part Defendant UCR Plan Board’s
Motion for Summary Judgment.
Moreover, for the reasons set forth in the opinion, for a period to expire on February 4,
2020, unless further extended for good cause, Defendant UCR Plan Board is hereby enjoined from
violating the Sunshine Act insofar as it requires that the pre-meeting “public announcement” and
the Federal Register notice include a description of the “subject matter of the meeting.”
Additionally, the Board is hereby enjoined from violating the Sunshine Act’s “public
announcement” and Federal Register disclosure requirements as to its subcommittee meetings.
Dated: February 4, 2019 Amit P. Mehta
United States District Judge
28