United States District Court, District of Columbia
P. MEHTA, UNITED STATES DISTRICT JUDGE
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
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.
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
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.
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).
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
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).
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 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
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.
The Sunshine Act
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 . . .
5 U.S.C. § 552b(e)(1). In addition, the Act further
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 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.
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,
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
Plaintiffs demanded that the court undo the Board's
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.
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 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.
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.
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.
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
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.
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.
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 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).
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).
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.
Violation of the UCR Agreement
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.
The Board's opening of the 2018 registration period
renders mootPlaintiffs' claim ...