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Inc. v. Unified Carrier Registration Plan Board

United States District Court, District of Columbia

February 4, 2019

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

          MEMORANDUM OPINION

          AMIT P. MEHTA, UNITED STATES DISTRICT JUDGE

         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.

         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 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 . . .

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 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 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 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 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 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 mootPlaintiffs' claim ...


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