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

• Court: District Court, District of Columbia
• Decided: February 4, 2019
• Docket: Civil Action No. 2017-2000
• Status: Published

Opinion

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.

5 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.

10 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

13 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.

20 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